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    "ocrText": "Ronald Reagan Presidential Library\nDigital Library Collections\nThis is a PDF of a folder from our textual collections.\nCollection: Roberts, John G.: Files\nFolder Title: JGR/Legal Services Corporation\n(2 of 4)\nBox: 31\nTo see more digitized collections visit:\nhttps://reaganlibrary.gov/archives/digital-library\nTo see all Ronald Reagan Presidential Library inventories visit:\nhttps://reaganlibrary.gov/document-collection\nContact a reference archivist at: [email protected]\nCitation Guidelines: https://reaganlibrary.gov/citing\nNational Archives Catalogue: https://catalog.archives.gov/\n/\nJohn:\nPlease feel free\nto come over and\ncheck my Legal\nServices file.\nGenny - 12/20\nNo. 82-1227\n/\nL\n/\nIN THE UNITED STATES COURT OF APPEALS\nFOR THE DISTRICT OF COLUMBIA CIRCUIT\nLEGAL SERVICES CORPORATION, ET AL.,\nAppellants,\nV.\nHOWARD H. DANA, JR., ET AL.,\nAppellees.\nON APPEAL FROM THE UNITED STATES\nDISTRICT COURT FOR THE DISTRICT OF COLUMBIA\nBRIEF FOR THE APPELLEES\nJ. PAUL McGRATH\nAssistant Attorney General\nRICHARD K. WILLARD\nDeputy Assistant Attorney General\nSTANLEY S. HARRIS\nUnited States Attorney\nANTHONY J. STEINMEYER\nALFRED MOLLIN\nAttorneys\nAppellate Staff\nCivil Division, Room 3617\nDepartment of Justice\nWashington, D.C. 20530\nTABLE OF CONTENTS\nPage\nQuestion Presented\n1\nStatement of the Case\n2\nNature of the Case\n2\nStatutory Scheme\n3\nDistrict Court Proceedings\n5\nArgument\n8\nStandard of Review and Summary\n8\nI. PLAINTIFFS HAVE NOT SHOWN OR ATTEMPTED TO SHOW\nTHE IRREPARABLE INJURY NECESSARY TO SUPPORT THE\nGRANT OF PRELIMINARY INJUNCTIVE RELIEF\n13\nII. PLAINTIFFS HAVE NOT SHOWN A STRONG LIKELIHOOD\nOF SUCCESS ON THE MERITS OF THEIR CLAIM\n16\nA. Congress Intended The President To Have The\nAuthority To Make Recess Appointments To The\nBoard of Directors Of The Legal Services\nCorporation.\n16\n1. The Legislative History Of The Legal\nServices Corporation Act As Well As\nTraditional Rules Of Statutory Construc-\ntion Compel The Conclusion That The\nCongress Intended The President To\nHave The Power To Make Recess Appoint-\nments Of Board Members\n17\n2.\nNeither The Intended \"Independence\"\nOf the Corporation Nor The \"Officers\nand Employees\" Clause Supports The\nContention That Congress Did Not\nIntend The President To Have The Power\nTo Make Recess Appointments To The\nBoard\n24\nB.\nAssuming Arguendo That Congress Intended\nTo Limit The Power Of The President To Make\nRecess Appointments To The Board, The Act\nIs An Unconstitutional Violation Of Article\nII, §2, Which Governs The Mode Of Appointment\nOf Officers Of The United States\n30\n- i -\nPage\n1. Buckley V. Valeo\n31\n2. Application of Buckley To This Case 33\n3. Plaintiffs' Arguments Do Not Support\nA Contrary Conclusion\n35\nIII. GRANTING PLAINTIFFS PRELIMINARY RELIEF WOULD\nCAUSE THE SAME INJURY TO DEFENDANTS WHICH\nPLAINTIFFS WISH TO AVOID, AND THE PUBLIC\nINTEREST WOULD BE SERVED BY DENYING PLAINTIFFS\nPRELIMINARY INJUNCTIVE RELIEF\n40\nA.\nInjury To The Defendants From The Granting\nOf A Preliminary Injunction\n40\nB.\nThe Public Interest Will Be Served By Denying\nThe Request For Preliminary Injunctive Relief. 40\nConclusion\n41\nCertificate of Service\n42\nAddendum\nCITATIONS\nCases:\nA Quaker Action Group V. Hickel, 137 U.S.App.D.C. 176,\n421 F.2d 1111 (1969)\n8\nAdams V. Vance, 187 U.S.App.D.C. 41, 570 F.2d 950\n(1978)\n2\n*Buckley V. Valeo, 424 U.S 1 (1976)\npassim\nCox V. Democratic Central Committee of the District of\nColumbia, 91 U.S.App.D.C. 416, 200 F.2d 356 (1952)\n8\nHendee V. United States, 22 Ct. Cl. 124 (1887)\n25\nHumphrey's Executor V. United States, 295 U.S 602 (1935)\n28\nMcCulloch V. Maryland, 17 U.S. ( 4 Wheat.) 316 (1819)\n...\n37\nNational Treasury Employees Union V. Reagan,\nU.S.App.\nD.C.\n,\n663 F.2d 239 (1981)\n25\n- ii -\nCases (continued) :\nPage\nSociety for Animal Rights, Inc. V. Schlesigner, 168 U.S.\nApp.D.C. 1, 512 F.2d 915 (1975)\n8\nStaebler V. Carter, 464 F. Supp. 585 (D.D.C. 1979)\n....\n21,29\nSteele V. United States, 267 U.S. 505 (1925)\n25\nUnited States V. Germaine, 99 U.S. 508 (1879)\n25\nUnited States V. Thirty-Seven Photographs, 402 U.S. 363\n(1971)\n11,23\n*Virginia Petroleum Jobbers Ass'n V. Federal Power Comm'n,\n104 U.S.App.D.C. 106, 259 F.2d 921 (1958)\n13,16,39\nWashington Metropolitan Area Transit Comm'n V. Holiday\nTours, Inc., 182 U.S.App.D.C. 220, 559 F.2d 841\n(1977)\n9\nWiener V. United States, 357 U.S. 349 (1958)\n28\nConstitution and Statutes:\nUnited States Constitution:\nArticle I\n22\nArtice II\npassim\nArticle II, §2\n6,29,30,32,\n34,38\nCommunications Satellite Act:\n47 U.S.C. 732\n22\n47 U.S.C. 733(a)\n22\nLegal Services Corporation Act, Public Law 93-355,\n88 Stat. 452:\n42 U.S.C. 2996\n3\n42 U.S.C. 2996c\n17\n42 U.S.C. 2996c (a)\n4,7\n42 U.S.C. 2996c (b)\n4\n42 U.S.C. 2996c (c)\n4,23\n42 U.S.C. 2996c (d)\n4\n42 U.S.C. 2996c (e)\n4,28,33\n42 U.S.C. 2996e (a)\n33\n42 U.S.C. 2996e (b) (1) (A)\n5,33\n42 U.S.C. 2996e (b) (1) (B)\n5,33\n42 U.S.C. 2996i\n4,33\n42 U.S.C. 2996j\n5,33\n-iii-\nConstitution and Statutes (continued):\nPage\n5 U.S.C. 2104\n25,27\n5 U.S.C. 2105\n25,27\n12 U.S.C. 1749bbb-1 (D)\n27\n15 U.S.C. 203 (H)\n27\n18 U.S.C. 4351(d)\n27\n20 U.S.C. 1047 (c)\n27\n42 U.S.C. 286b-(A)(8)\n27\n42 U.S.C. 8104 (E)\n27\n42 U.S.C. 8713(c)\n27\n47 U.S.C. 396(d)\n26\nMiscellaneous:\n117 Cong. Rec. 13785\n17,26\n117 Cong. Rec. 34737\n18\n119 Cong. Rec. 290693\n20\n119 Cong. Rec. 40460\n19,20,28\n120 Cong. Rec. 938\n20\n120 Cong. Rec. 1388\n20,26\n124 Cong. Rec. 7688\n37\nEconomic Opportunity Amendments of 1971: Hearings on\nOversight Into Administration of The Economic Opportunity\nAct Of 1964 and Consideration of H.R. 40, H.R. 6360,\nH.R. 6394, and H.R. 8163 Before the Special Hearing\nSubcommittee No. 2 of the House Committee on Education\nand Labor, 92d Cong., 1st Sess. 5 (1971)\n18\nThe Federalist Papers, No. 67 (Alexander Hamilton)\n20\nGeorge, Development of the Legal Services Corporation,\n61 Cornell L. R. 681 (1976)\n19\nH. R. Rep. No. 93-247, 93d Cong., 2d Sess. 2, [1974]\nU.S. Code Cong. & Ad. News 3972\n3,28\n42 Op. Att'y Gen. 165 (Oct. 25, 1962)\n22\n- iv -\nMiscellaneous (continued)\nPage\nThe President's Advisory Council on Executive Organizations,\nEstablishment Of A Department of Natural Resources --\nOrganization For Social and Economic Programs (1971)\n: .\npassim\nS. Rep. No. 92-792, 92d Cong , 2d Sess. 2 (1972)\n19\n7 Weekly Compilation of Presidential Documents 728\n(May 10, 1971)\n17,26\n7 Weekly Compilation of Presidential Documents 1634\n(December 21, 1971)\n18\n9 Weekly Compilation of Presidential Documents 664\n(May 11, 1973)\n19\n*\n/\nAuthorities chiefly relied upon are marked with an asterisk.\n- V -\nIN THE UNITED STATES COURT OF APPEALS\nFOR THE DISTRICT OF COLUMBIA CIRCUIT\nNo. 82-1227\nLEGAL SERVICES CORPORATION, ET AL. ,\nAppellants,\nV.\nHOWARD H. DANA, JR., ET AL.,\nAppellees.\nON APPEAL FROM THE UNITED STATES\nDISTRICT COURT FOR THE DISTRICT OF COLUMBIA\nBRIEF FOR THE APPELLEE\nQUESTION PRESENTED\nWhether the district court abused its discretion by not\ngranting a preliminary injunction to former members of the Board\nof Directors of the Legal Services Corporation (which injunction\nwould have permitted the former Directors to continue to serve on\nthe Board in the place of their successors) on the ground that\nthe former Directors did not make a strong showing that they were\nlikely to prevail on the merits of their claim that the\nPresident's recess appointments of their successors were invalid.\nThis case was previously before this Court upon plaintiffs'\nmotion for a stay pending appeal of the district court's denial\nof preliminary injunctive relief. This motion was denied by a\npanel of this Court (Wright, Ginsburg; Bork, not participating)\non March 4, 1982.\nSTATEMENT OF THE CASE\nNature of the Case.\nThis is an appeal from the district court's denial of\nplaintiffs' application for a temporary restraining order. On\nDecember 30, 1981, and January 22, 1982, during a recess of the\nSenate, President Reagan made recess appointments of the ten\ndefendants in this case to the Board of Directors of the Legal\nServices Corporation. Plaintiffs were the incumbent Directors\nwhose 3-year terms of office had expired and who were replaced by\nthe President's appointees. Plaintiffs filed a complaint in the\ndistrict court requesting temporary, preliminary and permanent\ninjunctive relief, seeking to prohibit the defendants from\nexercising their duties as Board members. Although some of the\nplaintiffs had themselves originally been recess appointees to\n1/ In its March 4, 1982, Opposition To Appellants' Motion For An\nInjunction Pending Appeal, defendants raised to the Court the\njurisdictional defects in plaintiffs' attempt to appeal from the\ndenial of a temporary restraining order. See, e.g., Adams V.\nVance, 570 F.2d 950 (D.C. Cir. 1970). For the same reasons set\nforth in that Opposition, we renew here our argument that the\nCourt does not have jurisdiction over this appeal. For the\npurposes of our brief on the merits, however, we have assumed\narguendo that the district court's denial may be treated as a de\nfacto denial of a motion for a preliminary injunction.\n- 2 -\nthe Board, 2/ plaintiffs contended that the President has\nneither statutory nor constitutional authority to make recess\nappointments to the Board. They contended further that they\nwould be irreparably harmed if the defendants were allowed to\nconduct a meeting of the Board on March 4-5, 1982, and continue\nto act in their capacity as Board members.\nThe district court declined to grant a temporary restraining\norder. Relying chiefly upon Buckley V. Valeo, 424 U.S. 1 (1976),\nwhich held that officials performing tasks substantially\nidentical to those performed by the Board members in this case\nmust be appointed in accordance with Article II procedures (which\ninclude the recess appointment power), the court ruled that\nplaintiffs had not met their burden of showing a likelihood of\nsuccess on the merits. This appeal followed.\nStatutory Scheme.\nThe Legal Services Corporation Act, 42 U.S.C. 2996, Public\nLaw 93-355, 88 Stat. 452, created a non-profit corporation,\nindependent of the Executive branch of the government, to\n\"replace the Legal Services Program [which had been administered\nby] the Executive Office of the President.\" H.R. Rep. No. 93-\n247, 93d Cong., 2d Sess. 2, [1974] U.S. Code Cong. & Ad. News\n3872, 3873. As noted by the district court, the Legal Services\nCorporation's core function is \"the nationwide determination of\n2/ Plaintiffs Cecilia Esquer, Steven Engelberg, Hillary Rodham,\nand Richard Trudell were given recess appointments to the Board\nby President Carter on January 19, 1978. See Exhibit 1 of\nDefendants' Memorandum of Points and Authorities in Opposition to\nPlaintiffs' Motion for a Temporary Restraining Order.\n- 3 -\neligibility for congressional appropriations to finance the\nprovision of legal services to the poor.\" Mem. Opinion, p. 8,\nnote. The governing body of the Corporation is an 11-member\nBoard of Directors. The structure and status of the members of\nthe Board are set forth at 42 U.S.C. 2996c:\n(a) The Corporation shall have a Board of\nDirectors consisting of eleven voting members\nappointed by the President, by and with the advice\nand consent of the Senate, no more than six of\nwhom shall be of the same political party\n(b) The term of office of each member of the\nBoard shall be three years, except that five of\nthe members first appointed\nshall serve for\na term of two years. Each member of the Board\nshall continue to serve until the successor to\nsuch member has been appointed and qualified\n(c) The members of the Board shall not, by reason\nof such membership, be deemed officers or\nemployees of the United States.\n(d) The President shall select from among the\nvoting members of the Board a chairman, who shall\nserve for a term of three years. Thereafter the\nBoard shall annually elect a chairman from among\nits voting members.\n(e) A member of the Board may be removed by a\nvote of seven members for malfeasance in office or\nfor persistent neglect of or inability to\ndischarge duties, or for offenses involving moral\nturpitude, and for no other cause.\nThe Corporation receives its funds by direct appropriation from\nCongress, without the intermediation of any other government\nagency. 42 U.S.C. 2996i. It may issue regulations, enforce\ncompliance with its rules and the Act by terminating funds to\n- 4 -\nrecipients found out of compliance (42 U.S.C. 2996e(b) (1) (A) ) ; it\nmay conduct hearings pursuant to its own rules (42 U.S.C. 2996j ) ;\nand it is the final administrative arbiter of questions\nconcerning eligibility for services funded under the Act. 42\nU.S.C. 2996e(b) (1) (B).\nDistrict Court Proceedings.\n(1) Proceedings Leading Up To This Appeal. Plaintiffs'\ninitial complaint was premised upon their contention that the\nPresident did not have the power to make a recess appointment to\nthe Board. They contended that the statute creating the\nCorporation provided only that appointments to the Board were to\nbe made by the President by and with the advice and consent of\nthe Senate, and that the statute did not, therefore, grant to the\nPresident the recess appointment power. They contended further\nthat this was constitutionally permissible on the grounds that\nthe members of the Board were not \"Officers of the United\nStates,\" as the Constitution defines that term. They concluded\nthat absent Senate confirmation, the defendants could not\nlawfully assume their posts, notwithstanding that four of the\nplaintiffs had themselves assumed their offices pursuant to\nrecess appointments by President Carter.\nThe district court's opinion denying plaintiffs temporary\ninjunctive relief was comprehensive. The court noted that\nCongress had followed the Article II format in laying down the\n- 5 -\nprocedures governing the appointment of Board members. It\nconcluded that there was no suggestion that the normal incidents\nof the Article II format -- including the recess appointment\npower contained in Article II, §2, cl. 3 -- were not intended by\nCongress. However, even if the statutory argument of the\nplaintiffs would have had merit, the district court noted that\n(Mem. Opinion, p. 6)\n[Plaintiffs] have not explained why it would not\nbe prudent for this Court to read [42 U.S.C.]\n$2996c(c) in more restrictive manner in order to\navoid a possible constitutional conflict between\nthe parameters of congressional authority under\nthe Necessary and Proper Clause and the\nfunctional breadth of the Article II appointment\npower recognized in Buckley.\nThe court went on to note that in Buckley V. Valeo, supra, the\nSupreme Court had taken an expansive, functional approach to\ndetermining the scope of the constitutional term \"Officers of the\nUnited States.\" The court noted that the Board of Directors of\nthe Legal Services Corporation performed discretionary functions,\nparticularly regarding the determination of eligibility for\npublic funds, which were indistinguishable from those functions\nthat the Supreme Court held, in Buckley, could be performed only\nby officers appointed in strict accordance with the procedures\nmandated in Article II of the Constitution. The district court\nconcluded that \"plaintiffs have not sufficiently explained why\nthe functional analysis in Buckley of the Article II appointment\npower does not compel the conclusion that LSC Directors are\n'Officers of the United States' within the purview of Article II,\n- 6 -\n§2, cl. 2.\" Mem. Opinion, p. 7 (emphasis supplied). On these\nbases, the district court declined to grant temporary injunctive\nrelief to the plaintiffs.\nAn appeal from this denial was noted, and plaintiffs on\nMarch 4, 1982, filed a motion with this Court seeking, as\npreliminary injunctive relief pending appeal, the same temporary\nrelief denied by the district court, namely, an order to permit\nthem to continue to serve on the Board in the place of their\nsuccessors, until such time as their successors' nominations had\nbeen confirmed by the Senate. This motion was denied by this\nCourt on the ground that plaintiffs \"have not demonstrated the\nrequisite likelihood of success on the merits, generally for the\nreasons stated by the district court\n=\n(2) Proceedings Subsequent To This Appeal. On March 22,\n1982, plaintiffs filed an Amended Complaint, in which they added\ntwo additional counts. They argue that whether or not the\nPresident has the authority to make recess appointments to the\nBoard, the appointments in this case would be invalid because\nthere were no statutory \"vacancies\" which could be filled by\nrecess appointments. In addition, they argue that these\nappointments fail to satisfy certain statutory provisions\nrequiring the Board to be appointed \"so as to include eligible\nclients, and to be generally representative of the organized bar,\nattorneys providing legal assistance to eligible clients, and the\ngeneral public.\" 42 U.S.C. 2996c(a).\n3/ The Court's March 4, 1982, order is reproduced in an Addendum\nto this brief.\n- 7 -\nAs of April 5, 1982, the date of the filing of this brief,\nthe district court had yet to rule upon plaintiffs' motion for a\npreliminary injunction. Cross-motions for summary judgment were\nfiled by the parties and were pending before the district court.\nARGUMENT\nStandard of Review and Summary.\nIt is well settled that a preliminary injunction constitutes\n\"extraordinary relief.\" Virginia Petroleum Job. Ass'n V. Federal\nPower Com'n, 259 F.2d 921, 925 (D.C. Cir. 1958). The granting of\nsuch extraordinary relief is within the sound discretion of the\ndistrict court. The role of the reviewing court is limited. The\nCourt \"will not set aside the action of a District Court in\neither denying or granting an application for a preliminary\ninjunction unless the action of the District Court was in clear\nerror or in abuse of discretion.\" Cox V. Democratic Central\nCommittee of the District of Columbia, 200 F.2d 356 (D.C. Cir.\n1952). This presents to the reviewing court \"a narrow question,\nand a great burden on appellants.\" Society for Animal Rights,\nInc. V. Schlesinger, 512 F.2d 915, 917 (D.C. Cir. 1975). The\nstandards governing the district court's exercise of discretion\nare (Virginia Petroleum Job. Ass'n V. Federal Power Com'n, supra,\n259 F.2d at 925) : 4\n(1) Has the petitioner made a strong showing\nthat it is likely to prevail on the merits of\nAlthough Virginia Petroleum Jobbers involved a motion to stay\nan administrative order, the factors set forth there also apply\nto motions for preliminary injunctions. A Quaker Action Group V.\nHickel, 421 F.2d 1111 (D.C Cir., 1969).\n- 8 -\nits appeal? Without such a substantial indica-\ntion of probable success, there would be no\njustification for the court's intrusion into the\nordinary processes of\njudicial review.\n(2) Has the petitioner shown that without such\nrelief, it will be irreparably injured?\n...\n(3) Would the issuance of a stay substantially\nharm other parties interested in the\nproceedings?\n(4) Where lies the public\ninterest?\n...\n[Emphasis supplied.]\nPlaintiffs made none of these requisite showings, and the\ndistrict court did not therefore abuse its discretion in denying\nplaintiffs preliminary injunctive relief.\nI. Irreparable Injury. Plaintiffs have made no attempt to\nshow irreparable injury. Their only relevant assertion is that\nif they are correct on the merits of this claim, they and not the\ndefendants should be administering the Corporation. While this\nis certainly injury in fact sufficient to establish standing to\nprosecute their claim, there is no indication that anything\n\"irreparable\" will be occasioned should plaintiffs ultimately\nprevail in this suit and at that time be restored to the offices\nof Directors of the Corporation.\nII. But, in any event, plaintiffs have failed to make a\nstrong showing that they are likely to prevail on the merits. To\nthe contrary, the defendants have demonstrated that Congress\n5/ Instead of a \"strong showing\" of likely success, a movant\nneed only meet the lesser standard of making a \"substantial case\non the merits,\" when the other three factors tip sharply in the\nmovant's favor. Washington Metropolitan Area, etc. V. Holiday\nTours, 559 F.2d 841, 843 (D.C. Cir. 1977). As the panel, in its\nMarch 4, 1982, order denying plaintiffs' motion for a stay pend-\ning appeal has already noted, that lower standard has no applica-\ntion in this case, since plaintiffs \"have failed to demonstrate\nthat the relief requested will prevent irreparable harm to them\nwithout causing similar harm to the other parties.\" See\nAddendum.\n- 9 -\nintended for the President to have the power to make recess\nappointments to the Board of Directors of the Legal Services\nCorporation. The history of the enactment of the Legal Services\nCorporation Act is marked by considerable debate over the make-up\nof the Board of Directors of the Corporation and the manner of\ntheir appointment. President Nixon insisted that the 11-member\nBoard be appointed \"in the constitutional way,\" by the President,\nwith the advice and consent of the Senate. He vetoed an early\nbill that would have restricted the appointment powers of the\nPresident, and subsequent compromise proposals which contained\nlesser restrictions on the President's power of appointment were\nthreatened with vetos and failed to win congressional passage for\nthat reason. Finally, the Congress acceded, and passed the\nAdministration's bill without change to the appointment\nprovisions, acknowledging that the President's appointment power\nwas \"unfettered.\" Thus, the legislative history demonstrates\nthat the Congress intended, without restriction, to grant the\nPresident the power to appoint members of the Board of Directors\n\"in the constitutional way\". Because the power to make recess\nappointments is an incident of the President's appointment power\nunder Article II of the Constitution, it follows that the\nCongress intended the President to have this power.\nThis construction of the Act is solidly supported by\nadministrative practice. Without congressional objection, prior\nadministrations have made recess appointments to the Board of\n- 10 -\nDirectors of the Legal Services Corporation, and to corporations\nwith similar statutory structures, such as COMSAT and the\nSynthetic Fuels Corporation. This construction of the Act is\nmade all the more compelling by the serious constitutional\nquestions which arise if the Act is interpreted to deprive the\nPresident of his recess appointment powers granted by Article II\nof the Constitution. United States V. Thirty-seven Photographs,\n402 U.S. 363, 369 (1971).\nPlaintiffs' contentions to the contrary are insubstantial.\nPlaintiffs rely almost exclusively upon that clause of the Act\nwhich recites that Board members are not, by reason of their\nmembership, to be deemed \"officers or employees of the United\nStates.\" However, there is not any support for the contention\nthat the term (\"officers\") was intended in its constitutional\nsense, or that a further implication concerning the applicability\nvel non of the President's recess appointment power was\ncontemplated. To the contrary, the context of this term as well\nas the way in which similar phrases are used in comparable\nstatutory schemes suggests strongly that Congress had in mind the\nstatutory definition of these terms, by which eligibility for\ncertain statutory entitlements and privileges are determined. In\naddition, plaintiffs' reliance on the intent of Congress that the\nCorporation be independent of the Executive branch is mis-\nplaced. Congress intended the appointment process to be one\nwhich insured accountability, not independence; moreover, the\nfull independence of the Board members is insured by virtue of\n- 11 -\nthe inability of the President to remove them from office, and is\ntherefore not inconsistent with the President's exercise of the\nrecess appointment power.\nNonetheless, assuming arguendo that plaintiffs' construction\nwere correct, then the Act would be unconstitutional. This issue\nis controlled by Buckley V. Valeo, 424 U.S. 1 (1976). Buckley\nholds that officials whose powers include \"rulemaking ...\nand\n[making] determinations of eligibility for funds,\" are \"Officers\nof the United States\" in the Constitutional sense and must be\nappointed in accordance with the requirements of Article II of\nthe Constitution. The Board members in this case have as their\n\"core function\", as the district court noted, \"the nationwide\ndetermination of eligibility for public funds.\" Mem. Opinion, P.\n8 note. Therefore, the Board members are \"Officers of the United\nStates\", and are subject to the President's Article II recess\nappointment power. Plaintiffs' attempt to distinguish Buckley on\nthe ground that the rulemaking and funding-eligibility\ndetermination functions only need to be performed by an Officer\nof the United States when exercised in conjunction with executive\nenforcement powers is incorrect. Not the least of the reasons\nwhy this is wrong is the express language in Buckley that \"each\nof these functions also represents the performance of a\nsignificant governmental duty exercised pursuant to a public\nlaw\n...\n[and] may therefore be exercised only by persons who\nare 'Officers of the United States. \" 424 U.S. at 140, 141\n(emphasis supplied).\n- 12 -\nIII. Injury to the Defendants and the Public Interest.\nFinally, whatever injury plaintiffs may be able to claim for\nthemselves, it is plain that granting them relief will cause\nabsolutely identical injury to the defendants; and, \"[r]elief\nsaving one claimant from irreparable injury, at the expense of\nsimilar harm caused another, might not qualify as the equitable\njudgment that a stay represents.\" Virginia Petroleum Job. Ass'n\nV. Federal Power Com'n, supra, 259 F.2d at 925. Moreover, the\npublic interest is best served by denying the preliminary\ninjunction. Should plaintiffs be granted their preliminary\nrelief and fail to prevail on the merits (or should their claim\nbecome moot by virtue of the Senate's confirmation of their\nsuccessors), then the disruption occasioned by displacing one set\nof Board members by another would needlessly occur twice: once\nas a result of preliminary relief, and once again when the\ndefendants again assumed their offices. The public interest lies\nin the constancy of Board membership, and the risk of double\ndisruption and the attendant consequences for the administration\nof the Legal Services Program should not be undertaken absent the\nmost extraordinarily compelling showing by plaintiffs. This,\nplainly, has not been made.\nI\nPLAINTIFFS HAVE NOT SHOWN OR ATTEMPTED TO SHOW\nTHE IRREPARABLE INJURY NECESSARY TO SUPPORT THE\nGRANT OF PRELIMINARY INJUNCTIVE RELIEF\nPlaintiffs have not attempted to make any showing whatsoever\nof irreparable injury. Their sole representation on this matter\nin their brief to this Court is that if the defendants have not\n13 1 I\nbeen lawfully appointed to their positions, then defendants'\n\"assertion of such control\n...\nirreparably injures the Corpor-\nation and the plaintiff directors, and ought to be enjoined. \"\nAppellants' Brief, p. 26. This confuses their claim on the\nmerits with the showing necessary to support a grant of\npreliminary injunctive relief. It is true, of course, that if\ndefendants are correct in the contention that their recess\nappointments by President Reagan are valid, then it is impossible\nfor plaintiffs to show any injury to themselves at all by\ndefendants' continuing to occupy their offices.\nHowever, the converse does not logically follow. It is not\ntrue that if the recess appointments are invalid, that\nirreparable injury to plaintiffs will necessarily occur.\nPlaintiffs, for example, have not shown what, if any, actions\ndefendants can or may intend to take in connection with their\nadministration of the Legal Services Corporation whose\nconsequences would be \"irreparable\" should plaintiffs regain the\noffices of directors in the ordinary course of the judicial\nconsideration of their claim.\nAt p. 26, note 37 of their brief, plaintiffs appear to\nincorporate by reference plaintiffs' discussion of \"irreparable\ninjury\" which was set forth in 11 17-27 of their Motion For\nInjunction Pending Appeal. This, however, adds nothing to their\nshowing. That motion was concerned exclusively with the alleged\nirreparable injuries which would happen if a March 4-5 meeting of\nthe Board were permitted to occur. The motion was denied and the\nmeeting was conducted. Minutes of the meeting were filed with\nthe district court and plaintiffs received copies. Plaintiffs\nhave not attempted to argue that their dire predictions concern-\ning the consequences of the meeting have occurred, or that this\nmeeting suggests any injuries which might continue to occur.\nTheir silence permits the inference that no such harm was\noccasioned.\n- 14 -\nIndeed, plaintiffs virtually concede in their brief that\nthis appeal from the denial of a temporary restraining order is\nprimarily designed to obtain from this Court a decision on the\nunderlying merits of this claim. Plaintiffs state (Appellants'\nBrief, p. 7):\nPlaintiffs continue to press this appeal because\n(1) they continue to believe that they are\nentitled to interim injunctive relief pending\nresolution of the merits, and (2) the public\ninterest in the prompt resolution of this\ndispute will be served by an early determination\nby this Court of the underlying legal issue as\nto the requirement of Senate confirmation of\ndirectors of the Legal Services Corporation.\n[Emphasis supplied.]\nHowever, plaintiffs' desire for an early resolution on the\nunderlying merits of their claim should not be a relevant element\nof this appeal. 1/ This appeal concerns the denial of a\ntemporary restraining order and even considered as a de facto\ndenial of a preliminary injunction, such preliminary relief\nrequires as a threshold matter a showing of irreparable\ninjury. Plaintiffs have made no such showing, and their appeal\n7/ In assessing the propriety of plaintiffs' suggestion that\nthis Court use this appeal as a vehicle to determine \"the\nunderlying legal issue as to the requirement of Senate\nconfirmation, the Court may wish to consider (1) the issue of\nSenate confirmation may lead to very significant constitutional\nquestions implicating the relation between Congress' authority\nunder the Necessary and Proper Clause and the President's\nauthority under Appointments Clause of Article II; and\n(2) the plaintiffs are presently proceeding on the merits in the\ndistrict court on the basis of an amended complaint which\ncontains two additional counts that have no constitutional\ndimension whatsoever. Thus, if plaintiffs should succeed on\neither of these latter counts, and this Court were to follow\nplaintiffs' suggestion and reach the constitutional issues, the\nCourt would have unnecessarily resolved questions of the utmost\nmoment, contrary to sound principles of judicial restraint.\n- 15 -\nshould therefore be dismissed on this basis alone, without any\nfurther consideration of the four factors set forth in Virginia\nPetroleum Jobbers. However, as we discuss below, plaintiffs have\nalso failed completely to make the requisite showing regarding\nlikelihood of success, harm to others, and the public interest.\nII\nPLAINTIFFS HAVE NOT SHOWN A STRONG LIKELIHOOD OF\nSUCCESS ON THE MERITS OF THEIR CLAIM\nCongress adopted the Article II format in establishing the\nprocedures for the appointment of Board members. The power of\nthe President to make recess appointments is an incident of the\nPresident's Article II powers, and absent a contrary expression,\nmust be assumed to be intended when the Congress adopts that\nformat. Moreover, a contrary construction which deprived the\nPresident of this power, in light of the functions performed by\nthe Directors, would be unconstitutional and void.\nPlaintiffs' contrary arguments are now asserted for the\nthird time. The district court found that they did not show any\nlikelihood of success and refused to grant a temporary restrain-\ning order. The plaintiffs then urged these same arguments before\na panel of this Court in support of their request for a stay\npending appeal, and the panel held that these arguments did \"not\ndemonstrate[] the requisite likelihood of success on the merits,\ngenerally for the reasons stated by the District Court in its\nMarch 3, 1982, Memorandum Opinion.\" See Addendum. For the\nsame reasons, they should once again be rejected.\nA.\nCongress Intended The President To Have The\nAuthority To Make Recess Appointments To\nThe Board Of Directors Of The Legal\nServices Corporation.\n- 16 -\n1. The Legislative History Of The Legal Services\nCorporation Act As Well As Traditional Rules Of\nStatutory Construction Compel The Conclusion That\nThe Congress Intended The President To Have The\nPower To Make Recess Appointments Of Board Members.\nIn 1971, the President's Advisory Council on Executive\nReorganization, the Ash Commission, submitted a report\nrecommending the establishment of a non-profit Legal Services\nCorporation.\nUp to that time, the Legal Services Program had\nbeen administered within the Executive Office of the President by\nthe Office of Economic Opportunity. Ash Commission Report, p.\n61. However, the legal representation provided under this\nprogram sometimes required that suits be brought against the\nvarious departments of the government, generating actual or\napparent conflicts of interest. The Commission believed that\nsuch conflicts jeopardized the effective operation of the\nprogram, and suggested that the President propose \"legislation to\nestablish a public corporation to administer the Legal Services\nProgram\nmodeled on the amendments to the Communications Act\nof 1934 which established the Public Broadcasting Corporation.\"\nAsh Commission Report, p. 135.\nSubsequently, on May 5, 1971, the President proposed\nlegislation to Congress for the purpose of creating a Legal\nServices Corporation. The President discussed specifically the\nquestion of the appointment of the governing Board of Directors\nof the Corporation, noting that \"[t]rue independence for [the\n8/ The President's Advisory Council on Executive Organization,\nEstablishment Of A Department Of Natural Resources--Organization\nFor Social And Economic Programs (1971) (hereinafter, the \"Ash\nCommission Report\").\n- 17 -\nCorporation] demands a governing body drawn from a wide spectrum\nand safeguarded against partisan interference after its\nappointment.\" 7 Weekly Compilation of Presidential Documents 728\n(May 10, 1971) (emphasis supplied). The legislation introduced\non behalf of the President in the House, H.R. 8163, contained\nvirtually all of the provisions ultimately enacted into law as 42\nU.S.C. 2996c concerning the structure of the Board, the manner of\n9/\nits appointment, and the status of its members.\nThe bill\nproposed an 11-member Board of Directors, appointed by the\nPresident with the advice and consent of the Senate, who would be\nremovable only by vote of the members of the Board for specified\n10/\ncauses.\nHowever, the Congress initially resisted this\nproposal, and the mode and manner of the appointment of the Board\nbecame the subject of a protracted struggle.\nIn place of the administration bill, the House Committee on\nEducation and Labor reported to the floor H.R. 10351. This\ncompromise bill provided for a 17-member Board of Directors, six\nof whom would be appointed by the President from members of the\npublic at large, the remainder of whom would be appointed by the\nPresident from lists submitted from various interested\nThe text of H.R. 8163 is set forth at 117 Cong. Rec. 13788-90\n(May 6, 1971). Compare Section 902 of H.R. 8163 with 42 U.S.C.\n2996c.\n10/ The administration bill also contained the provision that\nBoard members, on account of their membership, not be deemed\n\"officers or employees\" of the United States. H.R. 8163,\n902(c). None of the many bills proposed as alternatives to the\nadministration bill contained this language.\n- 18 -\n11/\norganizations.\nThese provisions were ultimately passed by\n12/\nboth the House and Senate.\nThis bill was vetoed by President Nixon. In his veto\nmessage, the President stated (7 Weekly Compilation of\nPresidential Documents 1634-35 (December 31, 1971) )\nThe restrictions which the Congress has\nimposed upon the President in the selection of\ndirectors of the Corporation is also an\naffront to the principle of accountability to\nthe American people as a whole. Under\ncongressional revisions, the President has\nfull discretion to appoint only six of the\nseventeen directors\nThe sole\nconstituency a Director of the Corporation\nmust represent is the whole American people.\nThe best way to insure this in this case is\nthe constitutional way--to provide a free hand\nin the appointive process to the one official\naccountable to, and answerable to, the whole\nAmerican people--the President of the United\nStates, and trust to the Senate of the United\nStates to exercise its advice and consent\nfunction. [Emphasis supplied. I\nAfter the President's veto was sustained, compromise bills\n(H.R. 12350 and S. 3010) were introduced and passed in the\nrespective Houses of the 92d Congress. A conference committee\nproposed adoption of the Senate version of the bill, which would\n11/ H.R. 10351 reflected a compromise between the provisions of\nH.R. 8163 and H.R. 6360, the so-called \"bi-partisan\" bill. H.R.\n6360 would have given the President authority to appoint only 5\nmembers of a 19-member Board; 6 members would serve ex officio,\nthe balance being appointed by other appointing authorities. See\nH.R. 6360, $904 (reproduced at Economic Opportunity Amendments of\n1971: Hearings on Oversight Into Administration Of The Economic\nOpportunity Act Of 1964 and Consideration of H.R. 40, H.R. 6360,\nH.R. 6394, and H.R. 8163 Before the Special Hearing Subcommittee\nNo. 2 of the House Committee on Education and Labor, 92d Cong.,\n1st Sess. 5 (1971)).\n12/ The actual bill passed by the House was S.2008, amended to\ncontain the provisions of H.R. 10351. 117 Cong. Rec. 34737\n(October 1, 1971).\n- 19 -\nhave allowed the President \"full discretion to name ten members\nof a 19-member Board, subject only to the constraint that six of\nthe ten must be attorneys and the remaining members would be\nnominated by the President from the recommendations made to\nhim. All nominees must be confirmed by the Senate.\" S. Rep. No.\n92-792, 92d Cong., 2d Sess. 2 (1972). However, this continued\nlimitation on the President's power of appointment led to the\nthreat of another veto, and the 92d Congress recessed without\npassage of a Legal Services Bill. See generally George,\nDevelopment of the Legal Services Corporation, 61 Cornell L. R.\n681, 693 (1976).\nIn 1973, the administration proposed legislation (H. R.\n7824) to the 93d Congress regarding the Legal Services\nCorporation. The provisions relating to the appointment, status\nand make-up of the Board of Directors were virtually identical to\nthose proposed in 1971. See 9 Weekly Compilation of Presidential\nDocuments 664 (May 11, 1973). The Congress this time did not\ncontest the administration bill's provisions regarding\nappointment of the Board members (119 Cong. Rec. 40460 (December\n10, 1973) (remarks of Senator Mondale) )\nFor over 2 years, those of us who believe\nstrongly in the legal services program have\nbeen insistent that there be some checks on\nthe President's discretionary appointment\npower to the Legal Services Corporation Board\nof Directors\nIn the committee-reported bill, the\nPresident has complete discretion in his\nappointments to the Board, subject only to\nSenatorial advice and consent. This\nrepresents a major concession on the part of\nthose favoring a strong, independent legal\nservices corporation.\n- 20 -\nThe Congress acceded to President Nixon's insistance that he\nbe given power to appoint the members of the Board of Directors\n\"in the constitutional way,\" and passed H.R. 7824 which was\nenacted into law. At every point during its consideration of\nH.R. 7824, the Congress emphasized that it intended no\n13/\nrestrictions whatsoever on this authority.\nBut the President's constitutional power to appoint officers\nof the United States by and with the advice and consent of the\nSenate includes as \"a supplement\" the power to make recess\nappointments. The Federalist Papers, No. 67 (Alexander\nHamilton). Necessarily, therefore, in granting the President the\nauthority to appoint members of the Board of Directors of the\nLegal Services Corporation \"in the constitutional way,\" the\nCongress impliedly granted him the power to make Article II\nrecess appointments. This construction is especially forceful in\nlight of the Congress' repreated expressions that it was not\nattempting to restrict the President's appointment power.\nTraditional rules of construction independently lead to this\nsame conclusion. First, in the thousands of pages of debate and\nhearings over the provisions of the Legal Services Corporation\nAct, the role of the President in the appointment process plays a\nparticularly leading role; yet, not one of the dozens of\n13/ See, e.g., 119 Cong. Rec. 40461 (remarks of Sen. Kennedy):\n119 Cong. Rec. 40476 (remarks of Sen. Javits: \"the committee\nbill[] follow[ [s] exactly the administration's proposal [regarding\nappointment to the 11-man board]\") ; 120 Cong. Rec. 1391 (remarks\nof Sen. Kennedy); 119 Cong. Rec. 20693 (remarks of Cong.\nErlenborn) ; 120 Cong. Rec. 938 (remarks of Sen. Nelson:\nappointment power of President is \"unfettered\").\n- 21 -\ncongressmen and senators who spoke to this issue ever indicated\nthat the Congress intended to restrict the power of the President\nto make recess appointments. As observed by Judge Harold Greene\nin Staebler V. Carter, 464 F.Supp. 585, 592 (D.D.C. 1979)\n[It is] difficult to believe that, had the\nCongress intended to take the significant step\nof attempting to curtail the President's\nconstitutional recess appointment power, or\neven to legislate in the area of that power,\nit would not have considered the matter with\nmore deliberation or failed to declare its\npurpose with greater directness and\nprecision. No such deliberation or direction\ncan be found in this legislative history.\nLikewise in this case, had the Congress intended the President\nnot to have the recess appointment power, it is inconceivable\nthat, in all of the available legislative history, that\nproposition would not have found some mention.\nMoreover, this construction is solidly supported by\nadministrative practice. On January 19, 1978, President Carter\nmade five recess appointments to the Board of Directors of the\nLegal Services Corporation. Four of the plaintiffs were among\nthese recess appointees. See Exhibit A, Memorandum Of Points And\nAuthorities In Opposition To Plaintiffs' Motion For A Temporary\nRestraining Order. President Carter sent the names of these\nindividuals to the Senate for confirmation when the Senate\nreturned to session, and the appointments were confirmed without\nany indication by the Senate that it believed recess appointments\nwere inappropriate. Similarly, President Kennedy in 1962 made\nrecess appointments of incorporators of the Communications\n- 22 -\nSatellite Corporation 14/ (Id.), and on October 3, 1980,\nPresident Carter made 5 recess appointments to the Board of\nDirectors of the United States Synthetic Fuels Corporation (Id.)\nwithout subsequent objection by Congress.\nThis interpretation of the Act is made all the more\ncompelling by serious constitutional questions which would be\noccasioned by the plaintiffs' construction. As is discussed in\ndetail below, for Congress to create a Board of Directors to\nadminister a significant federal grant program, and to attempt to\ninsulate these Board members from the full range of appointment\nauthority provided by the Constitution, would give rise to\nfundamental separation of powers questions under Articles I and\nII of the Constitution. In light of such serious questions, and\nespecially in circumstances where the legislative history gives\n14/ The Communications Satellite Act, 47 U.S.C. 732, 733 (a),\nprovides that the incorporators of this profit-making corporation\n(and 3 of 15 directors) are to be appointed by the President, by\nand with the advice and consent of the Senate. No objection was\nmade to recess appointments of the incorporators by President\nKennedy. Moreover, an opinion of the Attorney General (42 OAG\n165, Oct. 25, 1962), in the course of concluding that the\nincorporators held private posts and were not Officers of the\nUnited States, noted without objection that they had received\nrecess appointments. 42 OAG at 165 n.2. The basis of the\nAttorney General's failure to object to the mode of appointment\ncan only have been that the adoption by the Congress of the\nArticle II format grants the recess appointment power to the\nPresident. See 42 OAG at 166 (\"The method of appointment\n...\nis, of course, derived from\nArticle II.\")\nThis Attorney General Opinion is incorrectly cited by\nplaintiffs at page 24 of their brief as standing for the\nproposition that \"the President has no power to make recess\nappointments.\" [Emphasis supplied.] This reading confuses the\nOpinion's holding on the question of whether the incorporators\n(and directors) of this profit-making corporation are public\nofficers with the separate question of the President's statutory\npowers of appointment.\n- 23 -\nnot the slightest indication that Congress intended to provoke a\nconstitutional challenge, a sound respect for the principles of\njudicial restraint requires a court, if fairly possible, to avoid\nthe constitutional issues: \"[I]t is a cardinal principle that\nthis Court will first ascertain whether a construction of the\nstatute is fairly possible by which the [constitutional]\nquestion[s] may be avoided.\" United States V. Thirty-seven\nPhotographs, supra, 402 U.S at 369 (emphasis supplied). An\ninterpretation affording the President a power to make recess\nappointments is considerably more than \"fairly possible.\"\nTherefore, it is necessary for the Court to adopt that\nconstruction which avoids resolution of difficult constitutional\nissues involving the most sensitive relationships between coequal\nbranches of the Federal government.\n2. Neither The Intended \"Independence\" of the\nCorporation Nor The \"Officers and Employees\"\nClause Supports The Contention That Congress\nDid Not Intend The President To Have The Power\nTo Make Recess Appointments To The Board.\nPlaintiffs make two arguments in support of their contention\nthat Congress did not intend the President to have the power to\nmake recess appointments to the Board. They rely on 42 U.S.C.\n2996c(c), which provides that the \"members of the Board shall\nnot, by reason of such membership, be deemed officers or\nemployees of the United States,\" and also upon those portions of\nthe legislative history emphasizing the congressional intent that\nthe Board be independent of the Executive branch. Plaintiffs\nargue the power to make recess appointments is inconsistent with\nthese two provisions.\n- 24 -\n(a) The \"Officers and Employees\" Clause. Plaintiffs'\nargument appears to be that, by this clause, Congress displayed\nits intent that Board members were not, for constitutional\npurposes, to be considered \"Officers of the United States,\" and\nthat it meant thereby to \"limit Executive Branch control over the\nLegal Services Program\" by \"modif[ying] the powers of appointment\nthe President would have had if the Corporation were part of the\ngovernment and its directors 'officers of the United States.\nAppellants' Brief, pp. 10, 12. This is incorrect for several\nreasons.\n(i) First, the presence of this clause in the Act is due\nsolely to the insistence of the President. In none of the bills\nintroduced in Congress by which the Congress intended to limit\nexecutive appointment authority is there any parallel to the\nofficer and employee clause. The fact that the President, in the\ncourse of insisting upon his authority to make appointments to\nthe Board \"in the constitutional way,\" deliberately insisted upon\nthe insertion of this clause in the administration bill which was\nultimately passed by Congress strongly suggests that the clause\nwas neither intended nor perceived as a limitation on the\nappointment authority.\n(ii) Moreover, the clause uses, as if interchangable, the\nterms \"officer\" and \"employee.\" It is plain that being an\n\"employee of the United States\" has no constitutional\n- 25 -\n15/\nsignificance whatsoever.\nTherefore, in order to accept\nplaintiffs' construction, it would be necessary to assume that\nthe President and Congress intended one segment of the clause to\nhave a constitutional dimension (\"officers\") while the remaining\nsegment (\"employees\") had only a statutory dimension. But this\nis contrary to traditional rule of noscitur a sociis, which\n16/\nrequires words to be construed with an eye to their context.\n(iii) In addition, plaintiffs' construction is inconsistent\nwith what legislative history exists concerning the clause.\nThere is virtually no express comment upon the clause in the\n15/ Both \"Officer of the United States\" and \"Employee of the\nUnited States\" do have a statutory significance. Both terms are\ndefined at 5 U.S.C. 2104, 2105. As this Court has noted, in\norder to \"obtain the benefits of [the statutory protection due\nfederal employees and officers, individuals] must come within the\ndefinition of employee [or officer] set forth in 5 U.S.C.\n$2105(a).\" National Treasury Employees Union V. Reagan, 663 F.2d\n239, 246 (D.C. Cir. 1981).\n16/ Plaintiffs claim to rely upon the \"long-established rule that\nwhen the term 'officer of the United States' is used in a\nstatute, it means officer in a constitutional sense unless\nCongress explicitly states to the contrary.\" Appellants' Brief,\np. 9. There is no such rule. The two cases relied upon by\nplaintiffs (United States V. Germaine, 99 U.S. 508 (1879) and\nSteele V. United States, 267 U.S. 505 (1925)) were both cases\ninvolving the construction of penal statutes. As noted in Hendee\nV. United States, 22 Ct. Cl. 124, 140 (1887), Germaine thereby\n\"confined the Court to that technical accuracy in the meaning of\nwords which is required in penal statutes,\" and is of no\nprecedential value in construing a civil statute 22 Ct. Cl. at\n140. Hendee recognized that the phrase \"officer of the United\nStates\" is \"frequently used in a broader sense than the technical\none fixed by the constitutional method of appointment, and that\nuse of it is occasionally found in statutes.\" 22 Ct. Cl. at 142,\n141.\n- 26 -\nCongressional hearings, reports and debates on the Act. 17,\nBut\nit is several times mentioned that the mode of appointment of the\nBoard of Directors of the Legal Services Corporation was designed\non the model of the Public Broadcasting Corporation. See 117\nCong. Rec. 13785 (May 6, 1971) (remarks of Cong. Quie upon\nintroduction of administration bill); 7 Weekly Compilation of\nPresidential Documents 728 (May 10, 1971) ; Ash Commission Report,\np. 135. The act establishing that Corporation contains a similar\nprovision regarding the members of its governing board (47 U.S.C.\n396(d)):\n(2) The members of the Board shall not, by\nreason of such membership, be deemed to be\nemployees of the United States. They shall,\nwhile attending meetings of the Board or while\nengaged in duties related to such meetings or\nin other activities of the Board pursuant to\nthis subpart[,] be entitled to receive\ncompensation at the rate of $100 per day\nincluding travel time\nWhile there is no legislative history directly concerned with\nthis provision, its context makes clear that the \"employee\"\nlanguage is intended to exclude Board members from the myriad of\nstatutory benefits afforded to federal employees -- i.e., job\nprotection, retirement benefits, promotion schedules and other\nattendant job privileges -- in the course of establishing a\n17/ The sole comment on the clause appears to be a question by\nSenator Fannin, during the course of extended criticism of the\nbill, asking whether this provision was connected with the\nprovision in the bill giving the Board members the right to\nappoint their chairman. 120 Cong. Rec. 1388, 1389 (Jan 30,\n1974). Senator Fannin was not concerned with the bill in\ncommittee, and his questions were not responded to by the bill's\nsponsors.\n- 27 -\n18/\nlimited, fixed compensation scheme for the members.\nBecause\nthe Public Broadcasting Act served as a model for the Legal\nServices Corporation Act regarding the make-up and appointment of\nthe Corporation's Board of Directors, it may be assumed, in the\nabsence of any comment upon the subject at all, that the \"officer\nand employee\" section of the Legal Services Corporation Act\nintends, as does the Public Broadcasting Act, merely to exempt\nthe Board members from the statutory benefits and privileges\nwhich obtain to those who meet the statutory definitions of\n\"Officer of the United States\" (5 U.S.C. 2104) or \"Employee of\nthe United States\" (5 U.S.C. 2105).\nThus, in light of the indications that this clause refers\nonly to statutory entitlements, and in light of express\nstatements that Congress intended no limitations on the\nPresident's appointment powers, this clause cannot be understood\nas a limitation on the President's power to make recess\nappointments.\n(b) The Independence of the Corporation. Plaintiffs also\nargue that the Congress intended that the Board members have\n18/ More or less similar status provisions, always in the context\nof some compensation scheme, are found in several statutory\nschemes. See, e.g., Advisory Board of the National Institute of\nCorrections, 18 U.S.C. 4351 (d) (Board members not \"officers or\nemployees of the United States\" in context of compensation\nscheme) ; United States Metric Board, 15 U.S.C. 203 (H) (payments\nto Board members do not render them \"employees or officials\" of\nthe United States); National Periodical System Corporation, 20\nU.S.C. 1047 (c) Advisory Board, National Insurance Development\nProgram, 12 U.S.C. 1749bbb-1 (D) see also, National Cancer\nAdvisory Board, 42 U.S.C. 286b( (a) (2) (A) (8) National Neighborhood\nReinvestment Corporation, 42 U.S.C. 8104 (E) Synthetic Fuels\nCorporation, 42 U.S.C. 8713(c).\n- 28 -\ncertain qualifications, and that \"the importance of these\nprovisions in protecting the independence of the Corporation\nwould be vitiated if the president could circumvent the Senate's\ninsistence on adherence to these standards by simply making\nrecess appointments.\nII Appellants' Brief, p. 14. This\nmisses the mark. First, the appointment process was not designed\nto insure the independence of the Corporation, but, to the\ncontrary, was insisted upon by the President and acknowledged by\nthe Congress to \"provide[] strong elements of accountability [to\nthe Congress and the President].\" 119 Cong. Rec. 40476 (Dec. 10,\n1973) (remarks of Sen. Javits, emphasis supplied); H.R. Rep. No.\n93-247, supra, 3, [1974] U.S. Code Cong. & Ad. News 3874. But,\nin any event, the independence of the members of the Board is\nguaranteed by 42 U.S.C. 2996c(e), which provides that \"[a] member\nof the Board may be removed by a vote of seven members for\nmalfeasance in office or for persistent neglect of or inability\nto discharge duties, or for offenses involving moral turpitude,\nand for no other cause.\" This is the principal and traditional\nmethod of insuring the independence of an agency, commission or\ncorporation from the political influence of the Executive\nbranch. Humphrey's Executor V. United States, 295 U.S. 602\n(1935) Wiener V. United States, 357 U.S. 349 (1958); Buckley V.\nValeo, supra, 424 U.S. at 136 (\".\nmembers of independent\nagencies are not independent of the Executive with respect to\ntheir appointments.\") That the President's recess appointment\npower is not perceived as a threat to independence is underscored\nby the fact that the power extends even to Justices of the\n- 29 -\nSupreme Court, members of lower courts and the independent\nregulatory agencies, appointees with needs for an extraordinary\ndegree of independence. Staebler V. Carter, supra, 464 F. Supp.\n585; United States V. Allocco, 305 F.2d 704 (2d Cir. 1962), cert.\ndenied, 371 U.S. 964 (1963).\nThus, neither of the plaintiffs' arguments disturbs the\nconclusion that Congress intended the President to have the\nauthority to make recess appointments to the Board. This\nconclusion is firmly supported by Congress' expressed intent to\nleave \"unfettered\" the President's authority to appoint to the\nBoard \"in the constitutional way,\" and is confirmed by Congress'\nacquiescence in recess appointments made to this and similar\nboards during previous administrations.\nB. Assuming Arguendo That Congress Intended To\nLimit The Power Of The President To Make\nRecess Appointments To The Board, The Act Is\nAn Unconstitutional Violation Of Article II,\n$2, Which Governs The Mode Of Appointment Of\nOfficers Of The United States\nAssuming arguendo that plaintiffs were correct and that\nCongress intended in the Legal Services Corporation Act to divest\nthe President of the power to make recess appointments to the\nBoard, the Act would violate Article II, §2 of the\nConstitution. Article II, §2 provides, in pertinent part:\n[The President,] by and with the Advice and\nConsent of the Senate, shall appoint\nall\nother Officers of the United States, whose\nAppointments are not herein otherwise provided\nfor, and which shall be established by law:\nbut the Congress may by Law vest the\nAppointment of such inferior Officers, as they\nthink proper, in the President alone, in the\nCourts of Law, or in the Heads of\nDepartments.\n- 30 -\nThe President shall have Power to fill up\nall Vacancies that may happen during the\nRecess of the Senate, by granting Commissions\nwhich shall expire at the End of their next\nSession.\nThus, the Constitution makes the recess appointment power extend\nto all offices held by \"Officers of the United States,\" which\nrequire appointment by the President by and with the advice and\nconsent of the Senate. Buckley V. Valeo, supra, 424 U.S. 1,\nestablishes that, if an officer performs a function which can be\nperformed only by an Officer of the United States, he must be\nappointed in accordance with the exclusive requirements of\nArticle II of the Constitution. The duties of the members of the\nBoard of Directors of the Legal Services Corporation, which\ninclude the discretionary determination of eligibility for public\nfunds, can only be performed by Officers of the United States.\nTherefore, the President's constitutional power under Article II\nto make recess appointments extends to the offices of the Board\nof Directors of the Legal Services Corporation, and any attempt\nto restrict this power would be unconstitutional and void.\n1. Buckley V. Valeo\nThe analyses and principles set forth in this Supreme Court\ndecision control the resolution of the constitutional issue in\nthis case. One of the central issues in Buckley concerned the\nmode of appointment of members of the Federal Election\nCommission. The members of this Commission were not appointed in\nconformance with the provisions of Article II, which, the Court\nheld, was the sole permissible method of appointing \"Officers of\n- 31 -\n19/\nthe United States\" to their respective offices.\nThe term\n\"Officers of the United States\" was held \"to embrace all\nappointed officers exercising responsibility under the public\nlaws of the Nation.\" 424 U.S. at 143. The principle taught by\nBuckley, therefore, is that officials who are intended to\nexercise the functions of Officers of the United States must be\nappointed to office in accordance with the Article II methods of\nappointment.\nThe application of this principle in Buckley is particularly\ninstructive. The Court noted that the Commission performed three\ncategories of functions (424 U.S. at 137)\n[1] functions relating to the flow of\nnecessary information -- receipt, dissem-\nination, and investigation; [2] functions with\nrespect to the Commission's task of fleshing\nout the statute -- rulemaking and advisory\nopinions; and [3] functions necessary to\nensure compliance with the statute and rules\n-- informal procedures, administrative\ndeterminations and hearings, and civil\nsuits.\nFunctions of the first type, relating essentially to information\ngathering, are of a type which could be [] performed by a\ncongressional committee and could therefore \"be performed by\npersons not 'Officers of the United States. \" 424 U.S. at 139.\nHowever, the latter two categories of functions, were not \"merely\nin aid of the legislative function of Congress.\" 424 U.S. at\n19/ Of the six voting members of the Commission, two were\nappointed by the President with the advice and consent of both\nthe Senate and the House of Representatives; two by the Speaker\nof the House; and two by the President pro tempore of the\nSenate. The Secretary of the Senate and the Clerk of the House\nwere ex officio, non-voting members. Buckley V. Valeo, supra,\n424 U.S. at 113.\n- 32 -\n138. Some of the Commission's powers -- its discretionary power\nto seek judicial relief -- were executive powers, entrusted to\nthe President and subject to his direction. 424 U.S. at 138.\nThe other administrative powers of the Commission were, like the\npowers of the Legal Services Corporation in this case, somewhat\nlegislative or judicial in character, and of a kind \"usually\nperformed by independent regulatory agencies or by some\ndepartment in the Executive Branch\n\"\n424 U.S. at 141.\nThese powers included (424 U.S. at 140)\n[1] rulemaking, [2] advisory opinions, and [3]\ndeterminations of eligibility for funds and\neven for federal elective office itself.\n[Emphasis supplied.]\nThe Court ruled that each of these functions could only be\nperformed by an officer of the United States in the Article II\nsense of the term (424 U.S. at 141) :\n[E]ach of these functions also represents the\nperformance of a significant governmental duty\nexercised pursuant to a public law\n...\n[N]one of them operates merely in aid of\ncongressional authority to legislate or is\nsufficiently removed from the administration\nand enforcement of public law to allow it to\nbe performed by the present Commission. These\nadministrative functions may therefore be\nexercised only by persons who are \"Officers of\nthe United States.\" [Emphasis supplied.]\nThus, the Court concluded that the appointment provisions\nrelating to the Commission members were unconstitutional, as they\ndid not conform to the exclusive provisions set forth in Article\nII, §2.\n2. Application of Buckley To This Case.\nBuckley squarely applies to this case. Whether the members\nof the Board of Directors of the Legal Services Corporation are\n- 33 -\n\"Officers of the United States\" and their appointment subject to\nthe provisions of Article II of the Constitution depends upon the\nfunctions they perform. These functions are set principally\nforth at 42 U.S.C. 2996e and 2996f. Most importantly, the\nCorporation, under the direction of the Board, administers a\nfederal grant program previously administered by the Executive\nOffice of the President and funded by direct appropriations from\nCongress. 42 U.S.C. 2996e, 2996i.\n...\nthe Corporation is authorized -- (1)(A)\nto provide financial assistance to qualified\nprograms furnishing legal assistance to\neligible clients, and to make grants to and\ncontracts with -- (i) individuals,\nand\n(ii) State and local governments\n...\nfor the\npurpose of providing legal assistance to\neligible clients under this subchapter and (B)\nto make such other grants and contracts as are\nnecessary to carry out the purposes and\nprovisions of this subchapter. [42 U.S.C.\n2996e(a) ]\nIn addition, the Corporation is authorized to issue regulations,\nand it has the primary \"authority to insure compliance of\nrecipients and their employees with the provisions of [the Act]\nand the rules, regulations, and guidelines promulgated by [the\nCorporation] 42 U.S.C. 2996e(b) (1) (A). The Corporation may\nhold a hearing, conducted pursuant to its own rules and before\nhearing examiners it has appointed, to determine questions of\ncompliance; it may terminate assistance to those found out of\ncompliance. 42 U.S.C. 2996j, 2996e(b) (1) (A). The Corporation is\nalso the final administrative arbiter of questions concerning\neligibility for services under the Act. 42 U.S.C.\n2996e (b) (1) (B).\n- 34 -\n\"[R] ulemaking\n...\nand determinations of eligibility for\npublic funds\" were, in Buckley V. Valeo, supra, 424 U.S at 140-\n41, held to constitute \"performance of a significant governmental\nduty exercised pursuant to a public law,\" and \"may therefore be\nexercised only by persons who are 'Officers of the United\nStates. The duties of the Board of Directors of the Legal\nServices Corporation are of the same nature as the duties of the\nCommission members in Buckley. Buckley therefore compels the\nconclusion that the duties of the Board of Directors of the Legal\nServices Corporation can only be performed by \"Officers of the\nUnited States.\" Consequently, they must be appointed in\naccordance with the requirements of Article II, which includes\nthe power of the President to make recess appointment for \"all\nvacancies.\" Constitution, Article II, §2, cl. 3.\n3. Plaintiffs' Arguments Do Not Support A\nContrary Conclusion\nPlaintiffs' attempts to distinguish this case from the\ndecision in Buckley distort the analysis of that case and lead to\nabsurd results. Plaintiffs claim that the decision in Buckley\nturned exclusively upon the fact that the Federal Election\nCommission was given Executive enforcement functions. They claim\nthat the Commission's power to determine eligibility for public\nfunds was merely a power in the service of this enforcement\nfunction, and that only because of this subordinate relation was\nit necessary that this power be exercised by an Officer of the\nUnited States. They conclude that if the discretionary\ndistribution of public funds is not subordinated to an\nenforcement function, it need not be performed by an Officer of\n- 35 -\nthe United States, but may be performed by anyone Congress\ndesignates or even by Congress itself (Appellants' Brief, pp. 19-\n20):\nThe District Court was wrong to apply\nBuckley to this case because the Legal\nServices Corporation's making of grants is not\na power that operates in aid of a basic\nfunction of enforcement of public law, as was\nthe case with the Federal Election\nCommission. On the contrary, the making of\ngrants is the chief activity and function of\nthe Corporation. That function, the\ndistribution of funds, is well within those\nfunctions that Congress may carry out by\nitself in furtherance of its spending power.\n[Emphasis supplied.]\nPlaintiffs' theory leads to the absurd result that, for example,\nthe Departments of Health and Human Services, Education, and the\nVeterans' Administration, all of which are concerned almost\nexclusively with the distribution of funds, may be removed from\nthe Executive Branch where they are administered by Officers of\nthe United States, and administered by congressional committees,\nat the discretion of Congress; plainly this is wrong.\n(a) First, even if enforcement were of signal importance, it\nis only necessary to note that the Legal Services Corporation, at\nthe administrative level, has powers of enforcement at least as\nimportant to its overall administration of the Act as were those\nof the Federal Election Commission.\n(b) More importantly, however, the decision in Buckley did\nnot turn upon the enforcement powers of the Commission and the\nrelation of other powers to it. Indeed, the Court took exactly\nthe opposite approach, noting that there were many powers which\nthe Commission could exercise, which were merely in aid of\n- 36 -\ncongressional legislative authority, and others that it could not\nexercise, since they constituted the exercise of significant\nduties in the administration of public law. The Court treated\nthe powers individually. It concluded that the Commission's\nenforcement power \"may be discharged only by persons who are\n'Officers of the United States' within the language [of Article\nII of the Constitution]\" (424 U.S. at 140), and then went on to\nan independent consideration of administrative powers of\n\"rulemaking\n...\nand determinations of eligibility for funds,\"\nwhich the Court regarded as \"more legislative and judicial in\nnature than are the Commission's enforcement powers.\" 424 U.S.\nat 140, 141. It came to the independent conclusion that \"each of\nthese functions also represents the performance of a significant\ngovernmental duty exercised pursuant to a public law\n...\n[and\nt] hese administrative functions may therefore be exercised only\nby persons who are 'Officers of the United States. 424 U.S. at\n141 (emphasis supplied). Accordingly, the administration of a\nfederal program involving primarily the discretionary\ndistribution of annual congressional appropriations pursuant to a\npublic law is, in itself, a function which can only be performed\nby an Officer of the United States.\n(c) The judicial authorities cited by plaintiffs in support\nof their argument that Congress may create offices \"not\ncontrolled by 'Officers of the United States' to carry out\nCongress' spending and other powers\" (Appellants' Brief, p. 20)\nare remarkable in one respect: none of them discusses this\n- 37 -\n20/\nissue.\nFor example, in support of the proposition that it\nis constitutional for Congress to \"create[] private corporations\nwhose purposes include the spending of federal funds even though\nthe corporate directors were not subject to the President's\nArticle II appointment powers,\" plaintiffs cite McCulloch V.\nMaryland, 17 U.S. (4 Wheat.) 316 (1819). Appellants' Brief, p.\n21. So far, however, from standing for this proposition is\nMcCulloch, that Chief Justice Marshall's opinion never even\ndiscusses the appointment of the Board, let alone in connection\nwith the functions of the Board members. Indeed, the only part\nof that opinion pertinent to this case is that, under the\nNecessary and Proper Clause, Congress may employ a corporation to\ncarry into execution the powers of the government. 17 U.S. at\n421-22. However, as the Court noted in Buckley, McCulloch does\nnot stand for more (424 U.S. at 132)\nCongress has plenary authority in all areas in\nwhich it has substantive legislative\n20/ The only source cited by plaintiffs which actually bears upon\nthe constitutionality of recess appointments to the Board of the\nLegal Services Corporation is a study conducted by the\nCongressional Research Service, The President's Power To Make\nRecess Appointments To Fill Vacancies On The Board Of Directors\nOf The Legal Services Corporation, 124 Cong. Rec. 7688 (March 20,\n1978). Appellants' Brief, p. 25. The study concluded that the\nPresident could not make recess appointments to the Board of\nDirectors, because the Corporation had no authority to prosecute\nviolations of law and because \"the functions of the Corporation\nare not 'significant' governmental duties exercised pursuant to\npublic law.\" Id., 7690. This conclusion has no significance\nbecause the report fails to note or consider the fact that the\nfunctions of the Corporation include rulemaking, authority to\ncompel compliance with rules and statutes by administrative\nmeans, authority to settle eligibility questions, and that the\nCorporation was administering a federal grant program which had\npreviously been performed by an agency (the OEO) which was a part\nof the Executive Branch.\n- 38 -\njurisdiction, M'Culloch V. Maryland, 4 Wheat.\n316 (1819), so long as the exercise of that\nauthority does not offend some other\nconstitutional restriction. [Emphasis\nsupplied.]\nHere, of course, such a constitutional restriction does exist, in\nthe form of Article II, §2, which governs the mode of appointment\nof Officers of the United States.\nMoreover, as the Court in Buckley made clear, Congress has\nthe discretion to create offices not under the control and\ndirection of Officers of the United States \"only in aid of those\nfunctions that Congress may carry out by itself.\" 424 U.S. at\n139 (emphasis supplied). But the only power, generally speaking,\nthat Congress has \"by itself\" is the legislative power. That is,\nCongress may make laws about spending or other matters. But,\nthis legislative power does not extend to the administration of\nthose spending programs or other programs over which Congress has\nlegislative authority. Buckley V. Valeo, supra, 424 U.S. at\n139. If Congress could, as plaintiffs assert, either assign to\nitself or create offices not directed by Officers of the United\nStates for the purpose of \"carry[ing] out Congress' spending and\nother powers\" (Appellants' Brief, p. 20), then the Executive and\nJudicial Branches would no longer function as effective checks on\nthe exercise of power by Congress.\nThus, plaintiffs' arguments are wrong, and if the Act were\nconstrued to allow for the appointment of the Board of Directors\nof the Legal Services Corporation in a manner inconsistent with\nthe Constitution's mandated procedures, that Act is repugnant to\nthe Constitution and void.\n- 39 -\nIII\nGRANTING PLAINTIFFS PRELIMINARY RELIEF WOULD\nCAUSE THE SAME INJURY TO DEFENDANTS WHICH\nPLAINTIFFS WISH TO AVOID, AND THE PUBLIC\nINTEREST WOULD BE SERVED BY DENYING PLAINTIFFS\nPRELIMINARY INJUNCTIVE RELIEF\nA.\nInjury To The Defendants From The Grant-\ning Of A Preliminary Injunction.\nWhatever injury plaintiffs would have been able to claim for\nthemselves, it is plain that granting them relief will cause\ndefendants to suffer precisely the same injury; and, \"[r]elief\nsaving one claimant from irreparable injury, at the expense of\nsimilar harm caused another, might not qualify as the equitable\njudgment that a stay represents.\" Virginia Petroleum Job. Ass'n\nV. Federal Power Com'n, supra, 259 F.2d at 925.\nB.\nThe Public Interest Will Be Served By Denying\nThe Request For Preliminary Injunctive Relief.\nThe public interest in this case lies in the continued\nsmooth and efficient functioning of the Legal Services Program.\nConstancy in the membership of the Board, which is the governing\nbody of the Corporation, is an evident and indispensable element\nin this efficient operation. Obviously causing one set of Board\nmembers to be replaced by another set will lead to considerable\ndisruption and jeopardize the ability of the Corporation to\nperform its functions properly.\nShould plaintiffs be granted their preliminary relief and\nfail to prevail on the merits (or should their claim become moot\nduring the course of judicial review by virtue of the Senate's\nconfirmation of the nominations of their successors), then the\n- 40 -\ndisruption occasioned by displacing one set of Board members by\nanother would needlessly occur twice: once as a result of\npreliminary relief, and once again when the defendants again\nassume their offices. This possibility of double disruption and\nits attendant consequences for the administration of the Legal\nService Program, should not be risked absent the most\nextraordinary and compelling showing by plaintiffs. This plainly\nhas not been made.\nCONCLUSION\nThe plaintiffs' appeal from the denial of an application for\na Temporary Restraining Order should be dismissed on the grounds\nthat the order is not appealable. In the alternative, for the\nforegoing reasons, the district court's judgment should be\naffirmed.\nJ. PAUL McGRATH\nAssistant Attorney General\nSTANLEY S. HARRIS\nUnited States Attorney\nRICHARD K. WILLARD\nDeputy Assistant Attorney General\nANTHONY J. STEINMEYER\nALFRED MOLLIN\nAttorneys\nCivil Division, Room 3617\nDepartment of Justice\nWashington, D.C. 20530\nTelephone: (202) 633-4027\nApril 1982\n41 8 I\nCERTIFICATE OF SERVICE\nI hereby certify that on this 5th day of April, 1982, I\nserved the foregoing Brief for the Appellees upon counsel\ninvolved by causing copies to be mailed, postage prepaid, to:\nJoseph M. Hassett\nDavid S. Tatel\nJean S. Moore\nElliot C. Keeney, Jr.\nCarol A. Melton\nHOGAN & HARTSON\n815 Connecticut Ave., N.W.\nWashington, D.C. 20006\nAttorneys for Appellants\nLegal Services Corporation, et al.\nAlfred R. R Mollin Mill\nAttorney, Appellate Staff\n- 42 -\nADDENDUM\nUnited States Court of Appeals\nFOR THE DISTRICT OF COLUMBIA CIRCUIT\nNo.\n82-1227\nSeptember Term, 19 81\nLegal Services Corp., et al.\nCivil Action No., 82-0542\nPlaintiffs/Appellants\nfor the District of Columbia Circuit\nV.\nFILED MAR 41982\nHoward H. Dana, Jr., et al.\nDefendants/Appellees\nGEORGE A. FISHER\nCLERK\nBEFORE: Wright, Ginsburg and Bork, Circuit Judges\nORDER\nOn consideration of appellants' motion for injunction\npending appeal and the opposition thereto, it is\nORDERED by the Court that the motion is denied. Appellants\nhave failed to demonstrate that the relief requested will prevent\nirreparable harm to them without causing similar harm to the\nother parties. See Virginia Petroleum Jobbers Ass'n V. F.P.C.,\n259 F.2d 921, 925 (D.C. Cir. 1958) (\"Relief saving one claimant\nfrom irreparable injury, at the expense of similar harm caused by\nanother, might not qualify as the equitable judgment that a stay\nrepresents. \"). Therefore the lower standard for likelihood of\nsuccess on the merits, as set forth in W.M.A.T.C. V. Holiday Tours,\nInc., 559 F.2d 841 (D.C. Cir. 1977), does not apply. We find\nthat appellants have not demonstrated the requisite likelihood of\nsuccess on the merits, generally for the reasons stated by the\nDistrict Court in its March 3, 1982, Memorandum Opinion. Interim\nrelief is not appropriate at this time. It is\nFURTHER ORDERED by the Court, sua sponte, that this case\nshall be expedited. The parties are ordered to submit to the\nCourt within three days of the date of this order a suggested brief-\ning schedule.\nPer Curiam\nCircuit Judge Bork did not participate in the foregoing order.\nRD SILVERS ALASKA\nJURN L. STENNIS MISS.\nLOWELL P. WEICKER JA., CONN\nROBERT C BYRO W VA\nJAMES A Mc CLURE. IDAHO\nWILLIAM PROXMIRE WIS.\nPAUL LAKALT, NEV.\nDANIEL K INDUYS HAWAR\nJAKE GARN, UTAH\nERNEST F HOLLINGS S.C.\nTHAD COCHRAN, MISS\nTHOMAS F EAGLETON MO.\nMARK ANDREWS. N DAK\nLAWTON CHILES F.L.A.\nUnited States Senate\nJAMES ABDNOR S. DAK\n3 BENNETT JOHNSTON LA\nROBERT W. KASTEN, Ja., WIS.\nWALTER D HUDDLESTON KY.\nCOMMITTEE ON APPROPRIATIONS\nALFONSE M. D'AMATO, N.Y.\nQUENTIN N. BURDICK, N. DAK\nMACK MATTINGLY, GA.\nPATRICK J LEAHY VT.\nWASHINGTON, D.C. 20510\nWARREN RUDMAN/N.H.\nJIM SASSER TENN\nARLEN SPECTER. PA\nDENNIS Dr CONCINI, ARIZ\nPETE Y. DOMENICI, N. MEX.\nDALE BUMPERS. ARK.\n3. KEITH KENNEDY, STAFF DIRECTOR\nFRANCIS 1 SULLIVAN. MINORITY STAFF DIRECTOR\nOctober 8, 1984\nMr. Donald P. Bogard\nPresident\nLegal Services Corporation\n733 Fifteenth Street, N.W.\nWashington, D. C. 20005\nDear Mr. Bogard:\nAfter polling the members, the majority of the members\nthe Commerce, Justice, State, the Judiciary and Related\nAgencies Appropriations Subcommittee, denies the\nreprogramming requests dated September 12, 1984 relating to\nthe following regulations:\n45 CFR Part 1601: By-Laws of the Legal Services\nCorporation\n45 CFR Part 1612: Restrictions on Lobbying and\nCertain Other Activities\n45 CFR Part 1622: Public Access to Meetings Under\nthe Government in Sunshine Act\nThe Subcommittee expects the Corporation to take no\nfurther action to enforce, implement, or operate in\naccordance with these regulations as submitted. With\nrespect to 45 CFR Part 1612, the Subcommittee believes that\nthe restrictions contained in Public Laws 97-377, 98-166,\nand 98-411 are self-explanatory and can be enforced in the\nabsence of implementing regulations. Thus, the Corporation\nretains the ability to police illegal legislative and\nadministrative advocacy. The Subcommittee is, of course,\nwilling to entertain a new proposed regulation on the\nsubject and to discuss its specific concerns with the\nCorporation at any time.\nfor the\nCommerce, Justice, State, and\nthe Judiciary Subcommittee\nWBR/tpm\nMARK O HATFIELD OREG. CHAIRMAN\nTED STEVENS. ALASKA\nJOHN C STENNIS MISS\nLOWELL P. WEICKER Ja., CONN.\nROBERT C BYRD W VA\nJAMES A. Mc CLURE IDAHO\nWILLIAM PROXMIRE WIS.\nPAUL LAXALT, NEV\nDANIEL K. INDUYE HAWAII\nJAKE GARN, UTAH\nERNEST F HOLLINGS. S.C.\nTHAD COCHRAN MISS\nTHOMAS * EAGLETON MO.\nMARK ANDREWS. N OAK\nLAWTON CHILES FLA\nHnited States Senate\nJAMES ABDNOR S DAK\nJ. BENNETT JOHNSTON LA\nROBERT W. KASTEN JA., WIS.\nWALTER D HUDDLESTON KY.\nCOMMITTEE ON APPROPRIATIONS\nALFONSE M. O AMATO, N.Y.\nQUENTIN N. BURDICK N DAK.\nMACK MATTINGLY. GA\nPATRICK J LEARY VT.\nWASHINGTON, D.C. 20510\nWARREN RUDMAN N.H.\nJIM SASSER TENN\nARLEN SPECTER. PA.\nDENNIS De CONCINE ARIZ\nPETE V. DOMENICI, N. MEX\nDALE BUMPERS ARK\nOctober 8, 1984\nJ. KEITH KENNEDY, STAFF DIRECTOR\nFRANCIS J. SULLIVAN, MINORITY STAFF DIRECTOR\nMr. Donald P. Bogard\nPresident\nLegal Services Corporation\n733 Fifteenth Street, N.W.\nWashington, D. C. 20005\nDear Mr. Bogard:\nThis is a partial response to the ten reprogrammings submitted to\nthe Committee on Appropriations relating to regulations promulgated by\nthe Corporation which went into effect after April 27, 1984.\nNo objections have been raised by members of the Subcommittee on\nCommerce, Justice, State, the Judiciary and Related Agencies regarding\n45 CFR Part 1611 (Revised Appendix) and 45 CFR Part 1629. The\nCommittee has concerns regarding 45 CFR Part 1600, 45 CFR Part 1628,\nand 45 CFR Part 1629. While the Subcommittee has chosen not to deny\napproval for the reprogrammings, its concerns are articulated below\nand the Subcommittee would like these concerns addressed at the\nearliest possible moment.\nThe Subcommittee believes the definition of \"financial assistance\"\nenunciated in 45 CFR Part 1600 is inconsistent with other provisions\nof the Legal Services Corporation Act and its relevant legislative\nhistory. Financial assistance clearly applies to any grants or\ncontracts made by the Corporation relating to the provision of legal\nassistance. The Subcommittee would note with special concern the\nprospect that the Corporation, based on the proposed new and limited\ndefinition of \"financial assistance\" would attempt to deny a recipient\na hearing pursuant to Section 1011 of the Act in a case where funding\nwas terminated or refunding denied. Although the Corporation has\nraised questions regarding the scope of section 1011, the resolution\nof that issue must be decided by Congress and the Corporation should\nnot attempt to narrow the scope through its regulatory authority.\nThe Subcommittee's second concern relates to the interaction of 45\nCFR Part 1609 (Fee-Generating Cases) and 45 CFR Part 1628 (Recipient\nFund Balances). By including the fees received in a fee-generating\ncase in a recipient's fund balance the year in which the fee is\nreceived (45 CFR Part 1609.6) and then imposing a somewhat arbitrary\n10 percent ceiling on fund balances (45 CFR Part 1628.3), the\nCorporation has created a situation where fees paid to a recipient,\nparticularly near the end of the recipient's fiscal year, would\nultimately be recovered by the Corporation itself. The Subcommittee\nbelieves that such fees should be retained by the recipient.\nMr. Donald P. Board\nOctober 8, 1984\nPage 2\nSince the Subcommittee supports both the concept of encouraging\nrecipients to refer fee-generating cases to qualified members of the\nprivate bar and the effort to encourage recipients to manage their\nfunds better, it has chosen not to reject either regulation. However,\nthe interaction of the two regulations poses a serious problem which\nthe Corporation must address. We look forward to receiving your\ncomments on the subject.\nWauBRulum WARREN B. RUDMAN\nSincerely,\nfor the\nCommerce, Justice, State, and\nthe Judiciary Subcommittee\nWBR/tpm\nCHAIRMAN\nNEAL SMITH\nAPPROPRIATIONS SUBCOMMITTEE FOR\nMEMBER OF CONGRESS\nDEPARTMENT OF COMMERCE\nFOURTH DISTRICT. IOWA\nDEPARTMENT OF JUSTICE\nDEPARTMENT OF STATE\nWASHINGTON OFFICE\nCongress of the United States\nFEDERAL JUDICIARY\nSMALL BUSINESS ADMINISTRATION\n2373 RAYBURN HOUSE OFFICE BUILDING\nFEDERAL TRADE COMMISSION\nWASHINGTON D.C. 20515\nF.B.I.\nPHONE: (202) 225-4426\nhouse of Representatives\nS.E.C.\nF.C.C.\nINTERNATIONAL TRADE COMMISSION\nDISTRICT OFFICES:\nMashington, D.C. 20515\nU.S. TRADE REPRESENTATIVE\n544 INSURANCE EXCHANGE BUILDING\nU.S. ARMS CONTROL AGENCY\nUNITED NATIONS AGENCIES\nDES MOINES, IOWA 50309\nPHONE: (515) 284-4634\nOctober 1, 1984\nMEMBER\nAPPROPRIATIONS SUBCOMMITTEES FOR:\nAGRICULTURE\nP.O. Box 1748\nDEPARTMENT OF HEALTH AND HUMAN\n215 POST OFFICE BUILDING\nSERVICES\nAMES. IOWA 50010\nDEPARTMENT OF LABOR\nPHONE: (515) 232-5221\nDEPARTMENT OF TRANSPORTATION\nN.L.R.B.\nR.R. RETIREMENT BOARD\nNATIONAL INSTITUTES OF HEALTH\nHonorable Donald P. Bogard\nSOCIAL SECURITY\nPUBLIC HEALTH SERVICE\nPresident\nMISCELLANEOUS RELATED AGENCIES\nLegal Services Corporation\nMEMBER\n733 Fifteenth Street, NW\nCOMMITTEE ON SMALL BUSINESS\nWashington, DC 20005\nDear Mr. Bogard:\nThis is in reply to your letter of September 17 in which you proposed a\nchange in the program structure of the Consolidated Operating Budget (C.O.B.)\nof the Legal Services Corporation.\nI understand that this proposal involves changes in budget categories\nas follows:\no\nThe former \"Provision of Legal Assistance\" category would be separated\ninto two major budget categories: \"Delivery of Legal Assistance\" and\n\"Support for the Delivery of Legal Assistance\". The purpose of this\nseparation is to reflect more accurately the disposition of the\nCorporation's grant funds.\n0\nThe former \"Support for the Provision of Legal Assistance\" would be\nretitled \"Corporation Management and Grant Administration\". The\npurpose of this change is to provide a name more descriptive of the\nfunctions performed with the funding included in the category.\nI also understand that no grantee will be affected by this reformatting of\nthe budget structure.\nSince these changes in the program budget structure should help to describe\nmore accurately the use of funds appropriated to the Corporation and since no\ngrantee will be affected in any way by these changes, the Committee has no\nobjection to this proposal. We appreciate your keeping us informed of the\nactivities of the Legal Services Corporation.\nSincerely,\n760 with\nNeal Smith, Chairman\nSubcommittee on the Departments of\nCommerce, Justice and State, the\nJudiciary and Related Agencies\nTED STEVENS ALASKA\nJOHN C STENNIS MISS.\nLOWELL P. WEICKER JR., CONN.\nROBERT C BYRD W VA\nJAMES A MC CLURE, IDAHO\nWILLIAM PROXMIRE WIS\nPAUL LAXALT, NEV.\nDANIEL K INDUYE HAWAR\nJAKE GARN UTAH\nERNEST HOLLINGS SC.\nTHAD COCHRAN MISS\nTHOMAS F EAGLETON MO\nMARK ANDREWS N DAK\nLAWTON CHILES FLA\nHnited States Senate\nJAMES ABDNOR, $. DAK.\nJ. BENNETT JOHNSTON LA\nROBERT W KASTEN, Ja. wis\nWALTER HUDDLESTON KY.\nCOMMITTEE ON APPROPRIATIONS\nALFONSE M D'AMATO N.Y.\nQUENTIN N BURDICK, N. OAK\nMACK MATTINGLY. GA\nPATRICK J LEAHY, VT.\nWASHINGTON, D.C. 20510\nWARREN RUDMAN. N.M.\nJIM SASSER TENN\nARLEN SPECTER PA.\nDENNIS Dt CONCINI, ARIZ\nPETE V. DOMENICI, N. MEX.\nDALE BUMPERS. ARK.\nJ. KEITH KENNEDY. STAFF DIRECTOR\nOctober 8, 1984\nFRANCIS J. SULLIVAN. MINORITY STAFF DIRECTOR\nMr. Donald P. Bogard\nPresident\nLegal Services Corporation\n733 Fifteenth Street, N.W.\nWashington, D. C. 20005\nDear Mr. Bogard:\nNo objections have been raised by members of the\nSubcommittee on Commerce, Justice, State, the Judiciary and\nRelated Agencies Appropriations in relation to your\nreprogramming, submitted September 13, 1984, to shift\nadditional funds into the \"Field Programs\" budget category.\nThe Subcommittee notes, however, that if those funds are\nused for the basic field programs, which most members would\nfeel is the preferred option, that the distribution of those\nfunds is governed by the statutory allocation formula. It\nwould be helpful to the Subcommittee if the Corporation\nwould inform the Subcommittee of the exact plans for the\ndistribution of those funds.\nSincerely,\nWARREN B. RUDMAN\nfor the\nCommerce, Justice, State, and\nthe Judiciary Subcommittee\nWBR/tpm\nCHAIRMAN\nNEAL SMITH\nAPPROPRIATIONS SUBCOMMITTEE FOR:\nMEMBER OF CONGRESS\nDEPARTMENT OF COMMERCE\nFOURTH DISTRICT, IOWA\nDEPARTMENT OF JUSTICE\nDEPARTMENT OF STATE\nWASHINGTON OFFICE\nCongress of the United States\nFEDERAL JUDICIARY\nSMALL BUSINESS ADMINISTRATION\n2373 RAYBURN HOUSE OFFICE BUILDING\nFEDERAL TRADE COMMISSION\nWASHINGTON D.C. 20515\nF.B.I.\nPHONE: (202) 225-4426\nhouse of Representatives\nS.E.C.\nF.C.C.\nINTERNATIONAL TRADE COMMISSION\nDISTRICT OFFICES:\nMashington, D.C. 20515\nU.S. TRADE REPRESENTATIVE\nU.S. ARMS CONTROL AGENCY\n544 INSURANCE EXCHANGE BUILDING\nUNITED NATIONS AGENCIES\nDES MOINES, IOWA 50309\nPHONE: (515) 284-4634\nOctober 1, 1984\nMEMBER\nAPPROPRIATIONS SUBCOMMITTEES FOR:\nAGRICULTURE\nP.O. Box 1748\nDEPARTMENT OF HEALTH AND HUMAN\n215 POST OFFICE BUILDING\nSERVICES\nAMES, IOWA 50010\nDEPARTMENT OF LABOR\nPHONE: (515) 232-5221\nDEPARTMENT OF TRANSPORTATION\nN.L.R.B.\nR.R. RETIREMENT BOARD\nNATIONAL INSTITUTES OF HEALTH\nHonorable Donald P. Bogard\nSOCIAL SECURITY\nPresident\nPUBLIC HEALTH SERVICE\nMISCELLANEOUS RELATED AGENCIES\nLegal Services Corporation\nMEMBER\n733 Fifteenth Street, NW\nCOMMITTEE ON SMALL BUSINESS\nWashington, DC 20005\nDear Mr. Bogard:\nThis is in response to your letter of September 13 in which you proposed\na reprogramming of funds for the Legal Services Corporation.\nI understand that you plan to reprogram $965,212 into the \"Field Programs\"\nprogram for those field program grantees that are currently at the lower end of\nthe funding scale. I also understand that funding for field programs will be\naugmented with an additional $252,251 through reallocations within the \"Field\nPrograms\" category to make the total increase for field programs $1,217,463.\nI further understand that the $965,212 will be derived from the following\ntransfers:\no\n$375,073 from Program Development and Experimentation. This amount,\ncurrently earmarked for development of supplemental delivery systems,\nwill not be spent in FY 1984.\no\n$90,139 from Regional Training Centers. This amount is available\nthrough a discrepancy in the computations in establishing funding levels\nfor the centers. Each center will receive the funds in FY 1984 to which\nit is entitled.\n0\n$500,000 from the Office of Field Services and Unallocated reserves.\nThese funds are available as a result of certain cost savings.\nThe Committee has no objection to this reprogramming. However, it is the\nCommittee's intent and understanding that this reprogramming of funds for one-time\ngrants to field programs will in no way affect the allocation of the FY 1985\nappropriation for the Legal Services Corporation as specified in the funding\nformula in Public Law 98-411. If your plans are different from this understanding,\nyou should consult with us before you begin this reallocation of funds.\nHonorable Donald P. Bogard\nOctober 1, 1984\nPage Two\nThank you for keeping the Committee informed of the program changes\nwithin the Legal Services Corporation.\nSincerely,\nMeal bruth\nNeal Smith, Chairman\nSubcommittee on the Departments of\nCommerce, Justice and State, the\nJudiciary and Related Agencies\nMAMA U. MATHELD, OMEU. CHAIMAN\nTED STEVENS. ALASKA\nJOHN CISTENNS MISS.\nLOWELL P WEICKER Ja, CONN\nROBERT C BYRO W VA.\nJAMES A Mc CLURE IDAHO\nWILLIAM PROXMIRE WIS.\nPAUL LAXALT, NEV.\nDANIEL K INDUYE HAWAN\nJAKE GARN. UTAH\nERNEST HOLLINGS S.C.\nTHAD COCHRAN MISS\nTHOMAS R EAGLETON MO.\nMARK ANDREWS. N. DAK\nLAWTON CHILES FLA\nUnited States Senate\nJAMES ABDNOR 5. OAK\nJ. BENNETT JOHNSTON LA\nROBERT W. KASTEN, JR., wis.\nWALTER D HUDDLESTON, KY.\nCOMMITTEE ON APPROPRIATIONS\nALFONSE M. D'AMATO N.Y.\nQUENTIN N BURDICK N. DAK.\nMACK MATTINGLY, GA.\nPATRICK J LEARY VT.\nWARREN RUDMAN, N.H.\nJIM SASSER TENN\nWASHINGTON, D.C. 20510\nARLEN SPECTER PA.\nDENNIS D: CONCINI, AREZ\nPETE V. DOMENICI N. MEX\nDALE BUMPERS. ARK\nOctober 8, 1984\nJ. KEITH KENNEDY. STAFF DIRECTOR\nFRANCIS J. SULLIVAN, MINORITY STAFF DIRECTOR\nMr. Donald P. Bogard\nPresident\nLegal Services Corporation\n733 Fifteenth Street, N.W.\nWashington, D. C. 20005\nDear Mr. Bogard:\nMembers of the Subcommittee on Commerce, Justice, State,\nthe Judiciary, and Related Agencies have raised no\nobjections to the reprogramming submitted on September 17,\n1984, relating to the restructuring of Legal Services\nCorporation's Consolidated Operating Budget (C.O.B.).\nConcern was expressed, however, that the restructuring\nnot be used as a means to circumvent the statutory spending\nceilings on categories of the Corporation's budget contained\nin Public Law 98-411. From the Subcommittee's perspective,\nit is clear as a matter of law that those statutory spending\nceilings would apply to the same budget categories\nirrespective of whether they have been renamed or relocated\nin the C.O.B.\n1\nImplementation of the proposed new C.O.B. would be taken\nto mean the Corporation concurs with this interpretation.\nIf you have any difficulty with this condition, please\ninform the Committee on Appropriations immediately.\nSincerely,\nWARREN B. RUDMAN\nfor the\nCommerce, Justice, State, and\nthe Judiciary Subcommittee\nWBR/tpm\nTHE WHITE HOUSE\nWASHINGTON\nOctober 15, 1984\nNOTE FOR JOHN ROBERTS\nThis is an additional comment LSC just\nreceived on several of their regulations,\nthis time from the House side. The letter,\nunlike Senator Rudman's, does not purport to\ndeny LSC authority to enforce the regs in\nquestion.\n5G\nSteve Galebach\nNEAL\nAPPROPRIATIONS SUBCOMMITTEE FOR:\nMEMBER OF CONGRESS\nDEPARTMENT OF COMMERCE\nFOURTH DISTRICT IOWA\nDEPARTMENT OF JUSTICE\nDEPARTMENT OF STATE\nWASHINGTON OFFICE\nCongress of the United States\nFEDERAL JUDICIARY\nSMALL BUSINESS ADMINISTRATION\n2373 RAYBURN HOUSE OFFICE BUILDING\nFEDERAL TRADE COMMISSION\nWASHINGTON D.C. 20515\nF.B.I.\nPHONE: (202) 225-4426\nhouse of Representatives\nS.E.C.\nF.C.C.\nINTERNATIONAL TRADE COMMISSION\nDISTRICT OFFICES\nMashington, D.C. 20515\nU.S. TRADE REPRESENTATIVE\n544 INSURANCE EXCHANGE BUILDING\nU.S. ARMS CONTROL AGENCY\nUNITED NATIONS AGENCIES\nDES MOINES. IOWA 50309\nPHONE: (5 15) 284-4634\nMEMBER\nAPPROPRIATIONS SUBCOMMITTEES FOR:\nP.O. Box 1748\nAGRICULTURE\nOctober 11, 1984\nDEPARTMENT OF HEALTH AND HUMAN\n215 POST OFFICE BUILDING\nSERVICES\nAMES, IOWA 50010\nDEPARTMENT OF LABOR\nPHONE: (515) 232-5221\nDEPARTMENT OF TRANSPORTATION\nN.L.R.B.\nR.R. RETIREMENT BOARD\nNATIONAL INSTITUTES OF HEALTH\nSOCIAL SECURITY\nHonorable Donald P. Bogard\nPUBLIC HEALTH SERVICE\nMISCELLANEOUS RELATED AGENCIES\nPresident\nMEMBER\nLegal Services Corporation\nCOMMITTEE ON SMALL BUSINESS\n733 Fifteenth Street, N.W.\nWashington, D. C. 20005\nDear Mr. Bogard:\nThis is in response to your letter of September 12 in which you enclosed\ncopies of regulations of the Legal Services Corporation effective after\nApril 27, 1984 and which the Corporation intends to enforce and implement in\nFY 1985.\nWe have reviewed these regulations and after consulting with other\ncommittees sharing an interest in these matters, we believe that several of\nthem may be inconsistent with the intent of Congress as provided in the Legal\nServices Corporation Act, and the language of the FY 1985 Appropriation Act\n(P.L. 98-411) as applicable to the Corporation.\nThe regulations which concern us are:\n1. Part 1612 Legislative and Administrative Advocacy.\nThis new regulation appears to impose restrictions on representation by\nlegal services attorneys that go beyond what Congress intended in the Legal\nServices Corporation Act and the provisions of the FY 1984 and FY 1985 Appropria-\ntion Acts. For example, the restriction that limits responses to public officials\nto those instances where officials put their requests in writing appears to have\nno statutory basis. In addition, we are concerned about restrictions in the\nregulation on consultations with organizations, legal assistance to client groups,\ncommunications with clients, recordkeeping, and administrative representation.\n2. Part 1614 Private Attorney Involvement.\nThe Committee is concerned about this new regulation because it appears to\nundermine the local control of legal services programs by mandating a minimum\nrequirement that may not have any relationship to a program's operations. In\naddition, we note that most of the bar associations who commented on the regulation\nopposed it and stated that there was no need to increase from 10% to 12.5%, the\npercentage of a local program's funds that must be allocated to private attorney\nprograms.\nHonorable Donald P. Bogard\n-2-\nOctober 11, 1984\n3. Part 1620 - Priorities in Allocations of Resources.\nThe Committee is concerned that the new regulation may be inconsistent\nwith Section 1007 (a) (2) (C) of the Legal Services Corporation Act. This provision\nrequires all legal services programs to establish priorities concerning the\ncategories or kinds of cases which the program will undertake based on the needs\nof the client community and the funds available. The new regulation requires\n\"substantially equal access to the same type of services and levels of represen-\ntation, unless differences in level of services are based on differences in client\nfinancial resources\". The regulation does not define what \"substantially equal\naccess\" means.\nBecause of our concerns in these areas, we request that the Corporation not\nimplement these three regulations.\nSincerely,\nneal Smith\nNeal Smith, Chairman\nSubcommittee on the Departments of\nCommerce, Justice and State, the\nJudiciary and Related Agencies\nLEgAl SERV\nTHE WHITE HOUSE\nWASHINGTON\nDecember 6, 1982\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS\nask\nSUBJECT:\nResolution from County Judges and\nCommissioners Association of Texas,\nCalling for Abolition of Legal\nServices Corporation\nBruce Coleman, Commissioner of Deaf Smith County, Texas, has\nwritten the President to complain about Texas Rural Legal\nAid and its efforts to effect social change at great cost to\nthe county rather than serve the needs of indigent clients.\nCommissioner Coleman transmitted with his letter a resolu-\ntion adopted by the County Judges and Commissioners Asso-\nciation of Texas, noting abuses by Legal Services agencies\nand calling upon the President and Congress to abolish the\nLegal Services Corporation. I have prepared a reply for\nyour signature, based on previous letters you have signed on\nthe Legal Services Corporation.\nAttachment\nTHE WHITE HOUSE\nWASHINGTON\nDecember 6, 1982\nDear Commissioner Coleman:\nThank you for your recent letter to the President,\ntransmitting a Resolution from the County Judges and\nCommissioners Association of Texas. That Resolution noted\nthat many counties have found Legal Services Corporation\nfunded agencies to operate in a highly controversial manner,\nincreasing county costs rather than serving indigent client\nneeds. It concluded by calling upon the President and\nCongress to abolish the Legal Services Corporation and send\ntwo-thirds of the money directly to counties to be used to\nmeet the legal counsel needs of the indigent.\nAs you may know, the President generally has no authority\nover most Legal Services Corporation matters. Neither the\nPresident nor any other outside party may direct a Legal\nServices attorney as to the handling of any particular case.\nAlthough the President does appoint, with the advice and\nconsent of the Senate, members of the national Board of\nDirectors of the Legal Services Corporation, the law pro-\nvides that the Board shall be independent in reaching its\ndecisions.\nThe President has, however, often expressed concern about\nthe potentials for abuse in Legal Services programs of the\nsort noted in the Resolution. He proposed substantially\ngreater reductions in Federal funding for these programs\nthan the Congress was willing to adopt. The President has\nalso tried to appoint to the national Board persons who\nshare his concerns that publicly funded legal assistance\nprograms serve the needs of the indigent for legal counsel\nand do not become vehicles for political and social lobbying\nor other abuses of taxpayer dollars.\n-2-\nThank you very much for making us aware of your views and\nthe views of the County Judges and Commissioners Association\non this important subject.\nSincerely,\nFred F. Fielding\nCounsel to the President\nMr. Bruce Coleman\nCommissioner, Precinct 3\nCounty of Deaf Smith\nCourthouse, Room 201\nHereford, Texas 97045\nFFF:JGR:aw 12/6/82\nCC: FFFielding\nJGRoberts\nSubj.\nChron\n112655\nID #\nCU\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\nRoberts\n0 - OUTGOING\nH INTERNAL\nI . INCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n/\n/\nName of Correspondent:\nBruce Coleman\nMI Mail Report\nUser Codes: (A)\n(B)\n(C)\nSubject:\nResolution Me Legal Services Corp.\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nDD\nCo Holland\nORIGINATOR 82,11,30\n/ /\nReferral Note:\nCU AT 18\nD 182 / 12101\n58212114\nReferral Note:\n/ /\n/ /\n-\nReferral Note:\n/ /\n/ /\nI\nReferral Note:\n/ /\n/ /\n-\nReferral Note:\nACTION CODES:\nDISPOSITION CODES:\nA Appropriate Action\nI * Info Copy Only/No Action Necessary\nA Answered\nC Completed\nC Comment/Recommendation\nR * Direct Reply w/Copy\nB - Non-Special Referral\nS Suspended\nD Draft Response\nS For Signature\nF Furnish Fact Sheet\nX Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response = Initials of Signer\nCode = \"A\"\nCompletion Date = Date of Outgoing\nComments:\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nCounty of Deaf Smith\nCOURTHOUSE\nROOM 201\nHEREFORD. TEXAS 79045\nHause BILL BRADLY\nCOUNTY JUDGE\nCOMMISSIONERS\nW. GLEN NELSON\nCOMMISSIONERS\nXXXXXXXXXXXX\nAUSTIN ROSE, JR.\nBRUCE COLEMAN\nJAMES VOYLES\nPRECINCT NO. 3\nPRECINCT NO. 2\nPRECINCT NO. 3\nPRECINCT NO. 4\nNovember 24, 1982\n112655\nThe President of the United States\nWhite House\n1600 Pennsylvania Ave.\nWashington, D. C. 20500\nMy Dear Mr. President:\nFor the countless reasons we could enumerate upon request, the Deaf\nSmith County Commissioners' Court, the West Texas Commissioners' and Judges'\nAssociation and the State Commissioners' and Judges' Association have passed\nthe enclosed resolution.\nThrough NACo we have been working to require Legal Services Corporation\nto cause Texas Rural Legal Aid to work for our indigent's legal needs rather\nthan their practice of attempting to force their views of needed social change\nupon local government. We have spent untold local funds defending ourselves\nin Federal Court in poorly founded causes.\nWe call your attention that the enclosed resolution is the approved\nposition of the County Commissioners and Judges of Texas. Many other states\nare of like mind.\nWe will send you NACo's position as it developes and is finalized in\nJuly of next year.\nSincerely,\nBruce Coleman\nBruce Coleman\nCommissioner, Precinct 3\nDeaf Smith County, Texas\nBC/ws\nRESOLUTION\nWHEREAS, the County Judges and Commissioners Association of Texas recog-\nnizes the need for legal counsel by our indigent citizens; and\nWHEREAS, counties are mandated to provide certain kinds of indigent legal\ncounsel without having an adequate source of tax funds to meet this need; and\nWHEREAS, many counties have found Legal Services Corporation funded agencies\nsuch as Texas Rural Legal Aid to operate in a highly controversial manner often\nincreasing county costs rather than serving indigent client needs; and\nWHEREAS, the President and Congress in their New Federation thrust, are\nadvocating the return of programs and necessary funds to local government;\nNOW, THEREFORE BE IT RESOLVED, that the County Judges and Commissioners\nAssociation of Texas go on record asking the President and Congress to abolish\nthe Legal Service Corporation, and send 2/3 of the money directly to the counties\nto be used to serve indigent legal counsel needs at the direction of combined\nlocal bar association and local elected government; and\nADOPTED this 15th day of October, 1982.\nPEGGY Leggy GARNER\nGarner\nCo-Chairman, Resolutions Committee\nTHE WHITE HOUSE\nWAEHINGTON\nDecember 6, 1982\nDear Commissioner Coleman:\nThank you for your recent letter to the President,\ntransmitting a Resolution from the County Judges and\nCommissioners Association of Texas. That Resolution noted\nthat many counties have found Legal Services Corporation\nfunded agencies to operate in a highly controversial manner,\nincreasing county costs rather than serving indigent client\nneeds. It concluded by calling upon the President and\nCongress to abolish the Legal Services Corporation and send\ntwo-thirds of the money directly to counties to be used to\nmeet the legal counsel needs of the indigent.\nAs you may know, the President generally has no authority\nover most Legal Services Corporation matters. Neither the\nPresident nor any other outside party may direct a Legal\nServices attorney as to the handling of any particular case.\nAlthough the President does appoint, with the advice and\nconsent of the Senate, members of the national Board of\nDirectors of the Legal Services Corporation, the law pro-\nvides that the Board shall be independent in reaching its\ndecisions.\nThe President has, however, often expressed concern about\nthe potentials for abuse in Legal Services programs of the\nsort noted in the Resolution. He proposed substantially\ngreater reductions in Federal funding for these programs\nthan the Congress was willing to adopt. The President has\nalso tried to appoint to the national Board persons who\nshare his concerns that publicly funded legal assistance\nprograms serve the needs of the indigent for legal counsel\nand do not become vehicles for political and social lobbying\nor other abuses of taxpayer dollars.\n-2-\nThank you very much for making us aware of your views and\nthe views of the County Judges and Commissioners Association\non this important subject.\nSincerely,\nOrig. signed by FFF\nFred F. Fielding\nCounsel to the President\nMr. Bruce Coleman\nCommissioner, Precinct 3\nCounty of Deaf Smith\nCourthouse, Room 201\nHereford, Texas 97045\nFFF:JGR:aw 12/6/82\nCC: FFFielding\nJGRoberts\nSubj.\nChron\nWASHINGTON\n123 CANNON House c\nSTH DISTRICT. MICHIGAN\nWASHINGTON, D.\n(202) 225-\nJUDICIARY\nSUBCOMMITTEE ON CRIME,\nRANKING PUBLICAN MEMBER\nCongress of the United States\nMARY F. LC\nADMINISTRATIVE\nSUBCOMMITTEE ON COURTS,\nCIVIL LIBERTIES AND\nADMINISTRATION OF JUSTICE\nhouse of Representatives\nHOME OFFI\nVETERANS' AFFAIRS\n158 FEDERAL D\nSUBCOMMITTEE ON HOUSING AND\nWashington, D.C. 20515\nGRAND RAPIDS, MIC\nMEMORIAL AFFAIRS\n(616) 451-6\nRANKING REPUBLICAN MEMBER\nSUBCOMMITTEE ON OVERSIGHT AND\nINVESTIGATIONS\nDISTRICT REPRESE\nDecember 17, 1982\nJOHN R. WES\nThe President\nThe White House\nWashington, D. C. 20500\nDear Mr. President:\nThe conduct of your recess appointees to the Legal Services\nCorporation Board is an embarrassment to us and is becoming\na political liability to you. We are alarmed by the growing\npublic perception of the Administration's and our party's\nlack of sensitivity for the poor and elderly which is\nexacerbated by the recent actions of the Legal Services Corpora-\ntion Board.\nAs you know, the recess appointees to the board have billed and\nreceived from the corporation over $156,000 in consulting fees\nover the last 11 months. This figure is double the amount of the\nlast board's consulting fees (which I feel was equally unjustified\nIt now appears that federal law prohibits the payment of any\nsalary to these board members who do not meet the requirements for\nany payment for services under federal law limitations on payment\nto recess appointees. These billings have all been at a rate of\n$29 per hour. The Chairman, Harvey, who fears flying, bills this\nrate for his full drive-time between Indianapolis and Washington.\nThe 23 year old college student, Rathbun, also bills his \"consultin\nat $29 per hour for over $1000 during his first partial month.\nTo make matters worse, Chairman Harvey recently disregarded a board\ndirective and negotiated a flagrantly excessive contract with the\nperson of his own choosing as president of the corporation (a forme\nstudent of his). This contract includes $57,500 annual salary,\nmembership in a private club, one year's severence pay (including\nfringes) regardless of the reason for dismissal and without reduc-\ntion for other substitute earnings during the year, all living\nexpenses in Washington until June (with no test of reasonableness),\nand two trips to Indianapolis per month until June. These activiti\nhighlight the lack of integrity and sensitivity of these persons\nwho should be donating their time on behalf of the destitute member\nof our society who need access to the legal system.\nThese abuses are beyond defense. The only possible solution is the\nimmediate removal of all board members and the new president. The\nboard members must be required to repay the corporation the consult\nfees, which were obtained in violation of federal law. The new Leg\nMr. President\nPage Two\nServices Corporation president's contract must be nullified bec\nit is excessive and was negotiated in violation of the corporat\nboard directives.\nMr. President, we find your need to \"beg\" these persons to join\nthe board and their additional hours of service to be irrelevan\nto the issue of consulting fees, in light of the fact that ther\nare many conservative attorneys who are more highly qualified t\nserve on the board than the current members and who would be ho:\nto do so without any compensation. The board members of all 32:\ndonee agencies serve without either pay or expense reimbursement\nWe certainly cannot expect pro bono volunteerism from attorneys\nin our localities when this Administration allows the Legal Serv\nBoard members to make a profit on the backs of a program designe\nto help our poor and elderly. It appears to be the application\nof a \"suck up\" as opposed to a \"trickle down\" theory.\nWe are even more distressed over the Administration's apparent\nrefusal to consider the names of attorneys that we have submitte\nto you for consideration in the past. We are also aware that th\nAmerican Bar Association has also submitted names that have been\ndisregarded.\nThe Congress has mandated the continuation of the Corporation an\nits funding level of $241 million. The $100 million block grant\nprogram which the Administration prefers is not a viable option.\nWe urge you to accept the Corporation and work with us to obviate\nthe need for any legislation deemed necessary to protect the Corp\nation from mismanagement and harm. We are fearful that if the\nproblem is not corrected this issue will be used by all of our\nopponents in the next election.\nA delegation would like to meet with you regarding the removal of\nthe board, the repayment of the consulting fees, the removal of t\ncorporate president, the nullification of his contract, and the\nselection and confirmation of qualified members of the Legal\nServices Corporation Board. This meeting should be scheduled in\nthe immediate future.\nYours very truly,\nHarold S. Sawyer\nMember of Congress\nHamin Zuip\n! Here\nTom Can\nThomas nindness\nBill McDllin\nappointed\nby\nBOARD OF DIRECTORS OF THE\n:\ns\nnonprofit corporation)\n:\nthe President)\nState\nTerm\nNAME\nExpires\nNominated\nConfirmed\nCommis-\nsioned\nVice\n(Certificates are ma Intained and prepared by the Records Office)\nKUTAK, Robert J.\n(B)\nNeb.\n7/13/81\n1/18/79\n5/2/79\n5/3/79\nReappointment\nRCCramton,\nMcCALPIN, F. William\n(R)\nMo.\n7/13/81\n1/18/79\n5/2/79\n5/3/79\ntm. exp.\nORTIQUE, Revius 0., Jr.\n(D)\nLa.\n7/13/81\n1/18/79\n5/2/79\n5/3/79\nReappointment\nJMBroughton, Jr.,\nSACKS, Howard R.\n(I)\nConn.\n7/13/81\n1/18/79\n5/2/79\n5/3/79\ntm. exp.\nGCStophel,\nSHUMP, Ramona Toledo\n(*)\nKans.\n7/13/81\n1/18/79\n5/2/79\n5/3/79\ntm. exp.\nENGELBERG, Steven L.\n(D)\nMd.\n7/13/83\n6/23/80\nNOT CONFIRMED\nReappointment\nESQUER, Cecilia Denogean (D)\nAriz.\n7/13/83\n6/23/80\nNOT CONFIRMED\nReappointment\nRODHAM, Hillary Diane\n(D)\nArk.\n7/13/83\n6/23/80\nNOT CONFIRMED\nReappointment\nTRUDELL, Richard Allan\n(D)\nCalif.\n7/13/83\n6/23/80\nNOT\nCONFIRMED\nReappointment\nWORTHY, Josephine Marie\n(I)\nMass.\n7/13/83\n6/23/80\nNOT CONFIRMED\nReappointment\n*\nUnaffiliated\nU.S. GOVERNMENT PRINTING OFFICE\n16-80236-1\n:\nINDETENDENT)\n:\nPresident\nNAME\nTerm\nState\nExpires\nNominated\nConfirmed\nCommis-\nsioned\nVice\n(Certificates are maintained and prepared by the Records Office)\nENGELBERG, Steven L.\n(D)\nMd.\n7/13/80\n1/26/78\n3/20/78\n3/22/78\nRecess\nRODHAM, Hillary Diane\n(D)\nArk.\n7/13/80\n1/26/78\n3/20/78\n3/22/78\nRecess\nTRUDELL, Richard Allan\n(D)\nCalif.\n7/13/80\n1/26/78\n3/20/78\n3/22/78\nRecess\nWORTHY, Josephine Marie\n(I)\nMass.\n7/13/80\n1/26/78\n3/20/78\n3/22/78\nRecess\n/\nRCCramton,\nMcCALPIN, F. William\n(R)\nMo.\n7/13/81\n10/11/78\nNOT CONFIRMED\ntm. exp.\nGSSmith, Jr.,\nKANTOR, Michael\n(D)\nCalif.\n7/13/81\n10/11/78\nNOT CONFIRMED\ntm. exp.\n/\nKUTAK, Robert J.\n(R)\nNeb.\n7/13/81\n10/11/78\nNOT CONFIRMED\nReappointment\n/\nORTIQUE, Revius O., Jr.\n(D)\nLa.\n7/13/81\n10/11/78\nNOT CONFIRMED\nReappointment\nJMBroughton,Jr.,\nSACKS, Howard R.\n(I)\nConn.\n7/13/81\n10/11/78\nNOT\nCONFIRMED\ntm. exp.\nGCStophel,\nSHUMP, Ramona Toledo\n()\nKans.\n7/13/81\n10/11/78\nNOT\nCONFIRMED\ntm. exp.\nGSSmith, Jr.\nKANTOR, Michael\n/\n(D)\nCalif.\n7/13/81\n1/18/79\n5/2/79\n5/3/79\ntm. exp.\nU.S. GOVERNMENT PRINTING OFFICE\n16-80236-1\nNAME\nState\nicm\nNominated\nConfirmed\nExpires\nsioned\nVice\n(Certificates are maints\nand\nprepared\nby the Records Office)\nRMontejano,\n\"ESQUER, Cecilia Denogean (D)\nAriz.\n7/13/80\n12/12/77\nNOT CONFIRMED\nterm expired\n3\nSDThurman,\nENGELBERG, Steven L.\n(D)\nMd.\n7/13/80\n12/12/77\nNOT CONFIRMED\nterm expired\nWJJanklow,\nRODHAM, Hillary Diane\n(D)\nArk.\n7/13/80\n12/12/77\nNOT CONFIRMED\nresigned\nMJBreger,\nTRUDELL, Richard Allan\n(D)\nCalif.\n7/13/80\n12/12/77\nNOT CONFIRMED\nterm expired\nMWCook,\nWORTHY, Josephine Marie\n(I)\nMass.\n7/13/80\n12/12/77\nNOT CONFIRMED\nterm expired\nOrder\nRMontejano,\nESQUER, Cecilia Denogean (D)\nAriz.\nRECESS\n1/19/78\nterm expired\nOrder\nSDThurman,\nENGELBERG, Steven L.\n(D)\nMd.\nRECESS\n1/19/78\nterm expired\nOrder\nWJJanklow,\nRODHAM, Hillary Diane\n(D)\nArk.\nRECESS\n1/19/78\nresigned\nOrder\nMJBreger,\nTRUDELL, Richard Allan\n(D)\nCalif.\nRECESS\n1/19/78\nterm expired\nOrder\nMWCook,\nWORTHY, Josephine Marie\n(T)\nMass.\nRECESS\n1/19/78\nterm expired\nESQUER, Cecilia Denogean (D)\nAriz.\n7/13/80\n1/26/78\n3/20/78\n3/22/78\nRecess\nU.S. GOVERNMENT PRINTING OFFICE\n16-80336-1\nBOARD OF DIRECTORS OF THE\n:\nnonprofit corporation)\n:\nby President)\n0\nTerm\nCommis-\nNAME\n1\nState\nExpires\nNominated\nConfirmed\nsioned\nVice\nBy ORDER:\nDONATELLI, Frank J.\n(R)\nVa.\n7/13/83\nRECESS\n10/22/82\nMSandstrom, rsgnd\nBy ORDER:\nRATHBUN, Daniel M.\n(I)\nVa.\n7/13/83\nRECESS\n10/22/82\nJMWorthy\nU.S. GOVERNMENT PRINTING OFFICE 1980-0-334-630\nTerm\nCommis-\nNAME\nState\nExpires\nNominated\nConfirmed\nsioned\nVice\n(Certificates are maintained\n& prepared by Executive Clerk's Office)\nDeMoss, Harold R., Jr.\n(R)\nTexas\n7/13/83\n3/1/82\nWITHDRAWN-12/8/82\nRecess\nMcKEE, Clarence V.\n(R)\nD.C.\n7/13/83\n3/1/82\nWITHDRAWN\n-12/8/82\nRecess\nSANDSTROM, Marc\n(R)\nCalif.\n7/13/83\n3/1/82\nWITHDRAWN\n-5/18/82\nRecess\nDANA, Howard H., Jr.\n(R)\nMaine\n7/13/84\n3/1/82\nWITHDRAW\n-12/8/82\nRecess\nEARL, William L.\n(D)\nFla.\n7/13/84\n3/1/82\nWITHDRAWN\nI-12/8/82\nDESatterfield, III\nHARVEY, William F.\n(R)\nInd.\n7/13/84\n3/1/82\nWITHDRAWN\n1-12/8/82\nRecess\nOLSON, William J.\n(R)\nVa.\n7/13/84\n3/1/82\nWITHDRAWN\nI-12/8/82\nRecess\nPARAS, George E.\n(D)\nCalif.\n7/13/84\n3/1/82\nWITHDRAWN\n12/8/82\nRecess\n(D)\nSTUBBS, Robert Sherwood, II\nGa.\n7/13/84\n3/1/82\nWITHDRAWN\nI-12/8/82\nRecess\nSLAUGHTER, Annie Laurie\n(I)\nMo.\n7/13/83\n4/19/82\nWITHDRAWN\nN-12/8/82\nRecess\n(MSandstrom resigned 5/6/\n82, no eff. date;\nacc. 6/30/\n82, eff.\n5/8/82.)\nU.S. GOVERNMENT PRINTING OFFICE 1980-O-334-630\nTerm\nCommis-\nNAME\nState\nExpires\nNominated\nConfirmed\nsioned\nVice\n(Certificates are maintained\n& prepared by Executive\nClerk's Office)\nBy ORDER:\nRATrudell,\nSANDSTROM, Marc\n(R)\nCalif.\n7/13/83\nRECESS\n12/30/81\ntm. exp.\nBy ORDER:\nDANA, Howard H., Jr.\n(R)\nMaine\n7/13/84\nRECESS\n12/30/81\nRJKutak, tm exp\nBy ORDER:\nHARVEY, William F.\n(R)\nInd.\n7/13/84\nRECESS\n12/30/81\nHRSacks, tm exp\nBy ORDER:\nFWMcCalpin,\nOLSON, William J.\n(R)\nVa.\n7/13/84\nRECESS\n12/30/81\ntm. exp.\nBy ORDER:\nPARAS, George E.\n(D)\nCalif.\n7/13/84\nRECESS\n12/30/81\nMKantor, tm exp\n(D)\nin\nBy ORDER:\nSTUBBS, Robert Sherwood, II\nGa.\n7/13/84\nRECESS\n12/30/81\nRTShump, tm exp\n(D)\nBy ORDER:\nR00rtique,Jr.\nSATTERFIELD, David E., III\nVa.\n7/13/84\nRECESS\n12/31/81\ntm. exp.\nBy ORDER:\nSLEngelberg,\nDeMOSS, Harold R., Jr.\n(R)\nTexas\n7/13/83\nRECESS\n1/22/82\ntm. exp.\nBy ORDER:\nHDRodham,\nMcKEE, Clarence V.\n(R)\nD.C.\n7/13/83\nRECESS\n1/22/82\ntm. exp.\nBy ORDER:\nCDEsquer,\nSLAUGHTER, Annie Laurie\n(I)\nMo.\n7/13/83\nRECESS\n1/22/82\ntm. exp.\nU.S. GOVERNMENT PRINTING OFFICE 1910-0-334-630"
}